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Doctors' Irrational Fear of Medical Malpractice Lawsuits
a patient on another thread asked the question why doctors don't want to share information with us patients, which really is one of my "hot button" issues. here's my response:
"I think it comes down to a combination of the doctor's ego and desire to monopolize control over information so that he/she is more powerful than you AND an irrational fear of our so-called litigious society. Let me tell you: I am a lawyer. I am not a trial lawyer, not a medical malpractice lawyer, but know a thing or two about the realities and practicalities of our legal system. And I constantly argue this point over and over with those in the health care system and am always amazed at how irrational the response is: yes, anyone can bring a lawsuit, but it takes a whole lot to bring a winning lawsuit: first, the doctor has to really screw up; second, the doctor not only has to really screw up, but screw up in such a way that other doctors in the same situation in the same community would look at what was done and agree, yeah, that doctor really screwed up in a way we wouldn't have under the same circumstances -- the so called ordinary standard of care in the community test. Third, the patient has to prove that the doctor's screw up caused harm to the patient. Fourth, the patient has to prove the extent of damages the harm caused to the patient. Then the patient has to find a lawyer willing to take the case. That lawyer has to have enough confidence that the patient can prove up all this stuff so that the lawyer will actually get paid. Then the lawyer has to be willing and able to go through the painstaking task of documenting all this and persuading a judge or a jury to rule in the patient's favor.
Do you know how hard it is to do all that? Very. But walk into any medical practice in the country and the doctors will act as if every case is a winner and every patient is going to destroy their lives. The result: we all get bad information/deceived, and treated as if each and every one of us is not only going to bring a lawsuit, but that we're going to win! This is not the appropriate way for the medical world to engage in their day to day practices. In fact, it's a joke. But it's what almost all of us get for a standard of medical care. People put way too much stock in the power of our legal system. It's actually really tough for a regular person who doesn't want to blow their life savings on a lawyer to get anything done. It's a dirty little secret amongst us lawyers: we're not as powerful as you all imagine. But then again, if you guys all knew that, lawyers wouldn't get paid the big bucks, so hardly any lawyer will let you in on that dirty little secret. Trust me, next time you get a nasty-gram from a big name lawyer/lawfirm, try this: do nothing. See what happens. I'm telling you, it's more likely than not that you will call the lawyer's bluff then and there and never hear of it again."
"I think it comes down to a combination of the doctor's ego and desire to monopolize control over information so that he/she is more powerful than you AND an irrational fear of our so-called litigious society. Let me tell you: I am a lawyer. I am not a trial lawyer, not a medical malpractice lawyer, but know a thing or two about the realities and practicalities of our legal system. And I constantly argue this point over and over with those in the health care system and am always amazed at how irrational the response is: yes, anyone can bring a lawsuit, but it takes a whole lot to bring a winning lawsuit: first, the doctor has to really screw up; second, the doctor not only has to really screw up, but screw up in such a way that other doctors in the same situation in the same community would look at what was done and agree, yeah, that doctor really screwed up in a way we wouldn't have under the same circumstances -- the so called ordinary standard of care in the community test. Third, the patient has to prove that the doctor's screw up caused harm to the patient. Fourth, the patient has to prove the extent of damages the harm caused to the patient. Then the patient has to find a lawyer willing to take the case. That lawyer has to have enough confidence that the patient can prove up all this stuff so that the lawyer will actually get paid. Then the lawyer has to be willing and able to go through the painstaking task of documenting all this and persuading a judge or a jury to rule in the patient's favor.
Do you know how hard it is to do all that? Very. But walk into any medical practice in the country and the doctors will act as if every case is a winner and every patient is going to destroy their lives. The result: we all get bad information/deceived, and treated as if each and every one of us is not only going to bring a lawsuit, but that we're going to win! This is not the appropriate way for the medical world to engage in their day to day practices. In fact, it's a joke. But it's what almost all of us get for a standard of medical care. People put way too much stock in the power of our legal system. It's actually really tough for a regular person who doesn't want to blow their life savings on a lawyer to get anything done. It's a dirty little secret amongst us lawyers: we're not as powerful as you all imagine. But then again, if you guys all knew that, lawyers wouldn't get paid the big bucks, so hardly any lawyer will let you in on that dirty little secret. Trust me, next time you get a nasty-gram from a big name lawyer/lawfirm, try this: do nothing. See what happens. I'm telling you, it's more likely than not that you will call the lawyer's bluff then and there and never hear of it again."
Views: 162
Replies to This Discussion
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Permalink Reply by Melinda Hertel on
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Hi, Mike. Was the patient specific about what type(s) information doctors don't share with patients in general or with him personally? As a medical assistant I have seen how doctors react fearfully about potential lawsuits. I have also seen physicians go to court for lawsuits. So I was just wondering if the patient had a specific example or if this was just a general observation.
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Permalink Reply by Mike on
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Hi, Melinda. This person who posted was just making a general observation, more of a question as to why doctors don't actively share information more than they do. i know my view wasn't a popular one, but i truly believe it's the answer. with the doctors who went to court for lawsuits, did the patients win? More important, did they unfairly win?
Melinda Hertel said:Hi, Mike. Was the patient specific about what type(s) information doctors don't share with patients in general or with him personally? As a medical assistant I have seen how doctors react fearfully about potential lawsuits. I have also seen physicians go to court for lawsuits. So I was just wondering if the patient had a specific example or if this was just a general observation.
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Permalink Reply by B Robles MD on
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Dear Mike,
I am anesthesiologist so how I am affected by patient information is different, possibly, than other doctors in their practices. However, I have been in medicine for over 20 years and I can tell you that I have never withheld information from a patient. I also do not have irrational fears of lawsuits as I do my best for my patient and what is prudent on a daily basis. When a patient goes to a doctor there is a lot of information being transferred both ways and it simply will not be possible for anyone to remember everything that occurs in an exchange between a doctor and their patient. There have been studies to show that the average patient might only recall about 20% of what a doctor actually tells them. Now couple the low level of recall that patients will have, especially if what they are told has a tremendous impact, and it is possible that recall declines further while a patient fixates on an issue. I have this typical exchange with my spouse where she swears she told me something and I tell her she did not. Who is right? In fact I really do not believe that most doctors have irrational fears of lawsuits and we for the most part do not practice in that manner, though try to convince a non-medical person of that and it is just about impossible to do so. As for sharing information with patients, I do not believe that most doctors practice that way either given that any information generated in a patient's chart actually belongs to the patient. At any given point the patient only needs to ask for their medical records and they must be provided to the patient so it is in all honesty nearly impossible to keep information from patients. One last comment on lawsuits. They do not only occur when a doctor screws up but rather doctors will get sued when others, i.e., nurses that work for the hospital screw up. A case in point is a colleague who is an excellent surgeon and very consciencious doctor. Though the outcome of a surgery performed was not their fault, they were sued and lost. In a typical operation, the nurse in the room and the surgical tech are supposed to count instruments and sponges. In this particular case the tech and the nurse claimed that the count was done before the surgery ever started. This standard operating procedure. Well as the surgery is nearing the end and before wounds are closed another count is carried out. My friend the surgeon was told the count was correct. After the body cavity in which they were working was closed, another count occurred and again the surgeon was told that the count was correct. This should mean that it would be imposible to leave anthing behind in the patient. Well a third documented count occurred at the end once the skin was closed. So what happened? Several weeks later the patient came back to die in the hospital because there was a sponge left inside the patient. The surgeon can only depend on what the nurse and scrub tech tell them and in the end the surgeon was sued despite the fact that they followed standard operating procedure, carried out the operation under the standard of care and clearly it was the nurse and the scrub tech that were in the wrong. End result is that the surgeon lost the case for which she should not have been held responsible in that she did everything humanly possible to do the right thing. In retrospect, clearly the initial count was incorrect (done by the nurse and tech) which ultimately lead to this awful outcome but neither the nurse or tech were held responsible. Sound like justice to you? Well that is my 0.02.
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I don't deny that there are fine practices out there, and that yours is one of them. I do know that as a legal matter, patients records are their own, and they have a right to them at any time. But what doctors do in practice is shift the burden to patients of trying to extract these records from the inner workings of an individual physician/hospital practice in such a way as to make it onerous on the patient to actually get these records. Why? Doctors' staff will always cite HIPPA, which enrages me, because HIPPA is not for them (the medical professionals), it's for us, the patients, but it is most often used as a sword against us rather than the shield to protect us that is its very purpose for being. Why aren't patients records given to the patient/e-mailed to the patient on a routine and current basis?
B Robles MD said:Dear Mike,
In fact I really do not believe that most doctors have irrational fears of lawsuits and we for the most part do not practice in that manner, though try to convince a non-medical person of that and it is just about impossible to do so. As for sharing information with patients, I do not believe that most doctors practice that way either given that any information generated in a patient's chart actually belongs to the patient. At any given point the patient only needs to ask for their medical records and they must be provided to the patient so it is in all honesty nearly impossible to keep information from patients.
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I don't mean to be argumentative here, Dr Robles, BUT doctors can and do w/hold information from what are considered a patient's medical records. If they suspect a patient may be a "problem" some comments and info are kept elsewhere than in that patient's "medical records". Somewhere in this forum I provided links to the HIPAA regulations AND what records can be kept from patient medical records. And yes, I am talking medical records NOT mental health records.
When my family doctor died and I was doctor shopping for another I encountered a doctor I REALLY didn't like BUT who nonetheless gained a lot of respect from me because he carried a tape recorder in his smock pocket which he pulled out at the end of our visit and dictated his notes right there whilst I was present. I thought that was a GREAT idea! I've often wished I had enough nerve to ask my doctors if I could tape our conversation during our office visits because it is true, there is are times there's more to absorb than I can remember w/confidence. AND I've read some of my doctors' office notes and often found discrepancies, fortunately, so far, nothing serious, but definite discrepancies nonetheless, and NOT typos or misunderstandings by transcriptionists. Right arm instead of left arm (ER), patient is on a specific medication (have NEVER been scripted nor taken that medication under any generic or brand name) etc., etc. When I mentioned this to one doctor he said those small mistakes are why he always dictates his notes after every THIRD patient!!!! Every THIRD patient??? His memory is so much superior to mine?? I don't think so!
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