American College of Physicians: Internal Medicine — Doctors for Adults ®


Making malpractice a little less scary

From the June ACP Observer, copyright © 2007 by the American College of Physicians.

By Stacey Butterfield

SAN DIEGO—A Friday morning session on malpractice offered a rare sight—a roomful of physicians applauding a medical malpractice attorney. But Lee J. Dunn, Jr., JD, had come to advise and to reassure physicians, not to sue them.

Lee J. Dunn, Jr., JD

Lee J. Dunn, Jr., JD: "Don’t make clinical decisions based on whether you could be sued."

In contrast to the widespread fear they inspire, medical malpractice lawsuits are actually relatively infrequent, Mr. Dunn told his audience. Although studies have found that about 90,000 people die every year because of in-hospital negligence, very few incidents end in judgments against physicians, he observed. Only about 4% of malpractice claims go to trial, and physicians win more than 80% of the time.

Communication and common sense are the keys to not becoming part of the statistics, Mr. Dunn said. “People don’t sue doctors who they communicate well with.”

He highlighted five things that physicians should cover when discussing a new diagnosis or procedure with a patient:

  • what’s wrong
  • what you propose to do about it
  • the risks of the proposed treatment
  • alternative treatment options
  • what could happen if you do nothing

Physicians should be careful, however, not to make any specific guarantees to patients. “Don’t say, ‘You will be walking in two weeks.’ Say, ‘I wish I could predict exactly, but I can’t,’” advised Mr. Dunn. Promising an outcome that doesn’t come true not only disappoints the patient, he noted, but provides evidence for a malpractice attorney.

Even with the best of intentions and communication strategies, malpractice lawsuits will happen. Mr. Dunn’s first advice for those involved is not to panic. Then get some help. He told the story of a physician who was so upset about being sued that he didn’t tell anyone, missed the deadlines for response to the lawsuit and ended up losing his license.

Your insurance carrier should actually be notified as soon as an incident that could lead to a lawsuit occurs, Mr. Dunn said. It’s important to let the insurer’s legal experts handle the matter, but also to keep an eye out to make sure they are representing your best interests.

However, he cautioned, remember that insurers are focused on their own financial interests which may not coincide with issues that physicians may care more about, like retaining a medical license.

If you are sued, take your responsibilities within the suit seriously—review files and prepare thoroughly for depositions, Mr. Dunn advised. “It’s not something you can just blow off.”

Unless they are at that point, however, Mr. Dunn urges physicians not to worry so much about the possibility of a malpractice suit. “There’s nothing you can do, short of homicide, to prevent somebody suing you. Don’t make clinical decisions based on whether you could be sued.”


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