How Not to Get Sued

Don't get on the wrong side of medical malpractice subpoena

As a forensic pathologist and an expert at what kills people, I am frequently consulted by attorneys when a patient dies from a medical misdiagnosis or a therapeutic complication. Medical malpractice cases are contentious and drag on, sometimes taking years to resolve. The lawyers often know just as much medicine as the doctors -- and they do their homework, challenging my expertise and knowledge base with the goal of tripping me up until I concede something that will help them win. I have the advantage of coming in as an expert witness, an outside doctor who didn't provide care to the plaintiff patient. My job is to simplify things enough so that a jury can understand what happened, without dumbing it down so much that it isn't medically accurate.

Hospitals pay all those full-time attorneys in their risk management departments so that they can avoid hiring me. You consult an outside forensic pathologist when other medical professionals can't come to a consensus about what killed the patient. The stakes are high. For the individual doctors getting sued, a med-mal lawsuit is an unmitigated nightmare, a financial and emotional drain that takes them away from their patients and keeps them up at night second-guessing themselves.

You can lower your risk of living this nightmare. Here are my five top ways to avoid having to see the wrong side of a subpoena.

1. Don't be an asshole. Patients sue when they are angry at their doctors. If you treat people badly, they are more likely to blame you when things go wrong -- even when it's not your fault. Give your patients your time and attention and empathy. I have seen brilliant surgeons provide heroic care for patients in hopeless situations, only to be sued by those same patients for a failure of bedside manner. I have also seen doctors who make egregious errors of negligence dodge lawsuits because the family kept repeating that the victim had "just loved that nice doctor." Oh -- and don't forget that the no-assholes rule applies to your treatment of your colleagues, too. If you are nasty to the nurses and support staff at the hospital, you'd better believe they will be deposed when a patient you were caring for together dies. If, in their opinion, your behavior was unprofessional or demeaning, they will say so under oath. The more coworkers who support that opinion, the less likely the jury will credit you with keeping to your Hippocratic Oath.

2. Take the time to explain things. Patients feel completely out of sorts when they come to you. They're under a lot of stress, will have trouble listening, and may only understand a fraction of what you say. Sit down and write things out for them on a piece of paper they can take home. Make a drawing or print out a photo of the anatomy. Use reliable patient-friendly sources, and jot down the names of online resources they can depend on so they don't turn to Dr. Google for bad advice.

3. Don't promise anything you can't deliver. The informed-consent process was created to protect you. Take it seriously. Inform your patient of every realistic complication of a procedure that exists, even if you have never seen it in your own clinical practice. If you promise that a zebra-rare bad outcome is unlikely to happen to your patient and then it does happen, your chances of getting sued have just skyrocketed. Remember the root lesson of medical statistics: a complication with a 1% rate of occurrence has a 100% rate for the one patient in a hundred who suffers it.

4. Check your ego and your peer-reviewed references. You do not know everything. You will be proven wrong. If you are asked something in a deposition or trial and don't have the answer, just say "I don't know." Resist the powerful urge to regurgitate whatever you learned on the subject in medical school back in the last century. Making stuff up or relying on outdated science will get you into costly legal trouble.

5. Take responsibility for mistakes and apologize. Everyone makes mistakes. Work with risk management at your hospital to explain to the patient or their family how it happened and what you would have done to prevent this bad outcome from happening again to others, if the mistake was at all preventable. Most medical malpractice errors are system errors, a combination of factors caused by poor communication and decisions based on faulty information. Plaintiffs are more likely to settle a case if they like you and feel that you care, that you and the hospital administrators have learned from the mistake and aren't going to put others at risk.

Finally, if you are sued, find out as much as you can about the case. Talk to your insurance company and attorneys regularly. Educate yourself about the allegations and what the experts are saying. Most doctors named in the early phase of a medical malpractice lawsuit eventually get dropped when the facts of the case become known. Most malpractice lawsuits settle. When they do go to court, juries most often defer to the physicians. Heed numbers one through five and you'll increase your chances of coming up on the right side of those odds.

Judy Melinek, MD, is a forensic pathologist and CEO of PathologyExpert Inc. Her New York Times bestselling memoir, co-authored with her husband, writer T.J. Mitchell, is Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner. First Cut, the first novel in their medical-examiner detective series, will be published by HarperCollins in 2019.

by Judy Melinek MD

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