What Physicians Can Learn from Attorney-Rejected Malpractice Cases

Photo Credit: Yavdat

While the thought of litigation can be stressful, physicians are best served recognizing that it is a real possibility for healthcare professionals. According to Pennsylvania-based doctor Edward G. Zurad, MD, reviewing previously tried cases is one of the most effective methods for proactively attempting to avoid litigation and preparing if a malpractice suit should come one’s way. Even reviewing dismissed cases or out-of-court settlements can prove invaluable for physicians. Doing so can help them to become better healthcare providers when it comes to both patient care and documentation. Furthermore, reviewing past cases may shed light on how physicians can build stronger relationships with their patients.

Medical writer Linda Childers notes that a slew of malpractice suits never make it to court due to opting out of offering their services, often due to costs that exceed damages or a clear challenge in proving liability. Childers mentions the case of Illinois-based Jeanine Thomas, whose routine ankle surgery was followed by a methicillin-resistant Staphylococcus Aureus diagnosis that resulted in a potentially fatal bout with septic shock and organ failure. Despite the severity of Thomas’s situation, which required seven subsequent surgeries, attorneys refused to take the case, citing an inability to prove the hospital’s negligence as the reason. Sadly, Thomas was not alone in her misfortune; many patients who file medical practice claims due to surgery, diagnosis, anesthesia, and prescriptions find themselves without an attorney to represent their case. A report published in the Vanderbilt Law Review found that 75% of attorneys turn away over 90% of the cases that come their way.

Patients filing a malpractice suit are often doing so not just to receive payment; they want physicians to take responsibility for their actions and, if necessary, spur new procedures into practice to ensure patient safety. A study published in Proceedings (Baylor University Medical Center) identified four key motivators for patients to pursue a malpractice suit:

1. Wanting to avoid an incident’s repeat performance
2. Requiring an explanation for an incident
3. Wanting payment (due to financial losses, pain and suffering, and future healthcare costs)
4. Holding physicians accountable for their actions.

According to University of Kansas Medical Center associate professor of palliative medicine, Carla Keirns, MD, PhD, MSc, FACP, patients have a right to know what led to any medical error and how physicians will ensure that it won’t happen again. Dr. Keirns notes that patients who feel unheard or dehumanized are more likely to file a malpractice suit. Based on a study in Frontiers of Behavioral Neuroscience, physicians who demonstrate empathy with patients will experience fewer malpractice suits and increased patient satisfaction and compliance. Furthermore, a study published in the Journal of the American Academy of Psychiatry and the Law found that physicians who make medical errors must learn to forgive themselves to avoid such situations plaguing their careers. An article in the Journal of Urgent Care Medicine contends that the path to self-forgiveness requires responsibility, remorse, restoration, and renewal.

Several hospitals have begun to take a more proactive and clear approach to addressing medical errors. For example, the Agency for Healthcare Research and Quality created a free online toolkit, Communication and Optimal Resolution (CANDOR), that demonstrates strategies for involving patients and families in disclosure communication after they experience a medical error while supporting any associated physicians and staff. According to an article in Health Affairs, programs like CANDOR are effective. Authors cited another program—Communication, Apology, and Resolution (CARe)—which six hospitals in Massachusetts successfully instituted. Ultimately, taking a proactive, transparent approach toward confronting medical errors yields better patient and provider outcomes.