When Bad Things Happen to Patients
Patients experience adverse outcomes due to medical negligence every day. Although physicians have legitimate worries about being sued, the fact is that fewer than 10% of those patients and families will actually file a malpractice suit.
Why do so many patients with valid claims decline to sue physicians and medical institutions?
Patients generally sue because they suffered an injury. They may have lost income and can’t afford their medical care without an award or settlement. But a tipping point in deciding whether to bring suit depends on the patient’s perception of his or her doctor, say malpractice experts. “There are some individuals who are ready to file suit at the drop of a hat,” says Gerald B. Hickson, MD, Senior Vice President for Quality, Patient Safety and Risk Prevention at Vanderbilt University School of Medicine in Nashville. “Luckily, most patients are reluctant to sue and are willing to forgive caregivers if they feel they’ve been respected. The doctor doesn’t have to be all warm and fuzzy. It’s about modeling respect for the patient, being candid, and answering questions.
“When patients feel a lack of respect, it increases the likelihood of an avoidable adverse outcome,” he said. “Doctors who don’t show respect for patients also don’t model respect for other members of the healthcare team. And medicine is a team effort. So if there’s a poor outcome, the family is predisposed to filing a lawsuit.”The axiom that patients don’t sue physicians they like is overly broad but has some truth to it. How physicians
The axiom that patients don’t sue physicians they like is overly broad but has some truth to it. How physicians communicate with patients, especially after an adverse outcome, can determine whether they are sued, despite the level of injury or their own liability. Numerous studies have shown that physicians who are candid with patients and spend more time answering questions are less likely to be sued.
Good Rapport Can Discourage Lawsuits
“Most patients understand that anyone can make an honest mistake,” said Michael J. Sacopulos, an attorney in Terre Haute, Indiana. “Everyone in medicine knows of a doctor who is a total hack and makes life-threatening mistakes all the time. But his patients love him, and no one ever sues. Personality may be more important than clinical ability when it comes to lawsuits.”
Armand Leone, MD, JD, a radiologist plaintiff’s attorney in Glen Rock, New Jersey, often deals with patients and families who want to sue specialists but not their family physician (FP). That’s understandable because the specialist often provides only episodic care. “In one case, the FP was treating a 30-year-old male nonsmoker for bronchitis. It turned out to be congestive heart failure,” said Leone. “The FP referred the patient to a cardiologist who never ordered a stress test. Four weeks later, the patient had a myocardial infarction. A review of the medical records showed that both doctors bore some liability.”
“The patient said he couldn’t possibly sue his FP, who had treated his family for many years,” said Leone. “We tell patients that we can’t do our job as attorneys properly if one doctor is off limits. We have to examine the whole spectrum of care. Having a good bedside manner and long-standing relationship with patients will often protect doctors from lawsuits, regardless of their level of competence.”
It’s Just an Old Wives’ Tale
Other attorneys disagree that patients don’t sue doctors they like. “I’ve been doing malpractice litigation for 25 years, and this is an old wives’ tale — a total fiction,” said John M. Fitzpatrick, a defense attorney in Denver. “If the case is meritorious and substantial money is a possibility, they will sue. If the case is meritorious but the recovery is likely to be small, they don’t sue because they can’t find a lawyer willing to take the case.”
The size of any potential recovery is crucial even when the patient is reluctant to sue. “If there is a severe injury and financial hardship then people are less inclined to provide a safe harbor for a specific doctor,” said Dr. Leone. “The patient and family may need to sue in order to avoid financial catastrophe, regardless of how they feel about the doctor.”
“The biggest reason injured patients don’t sue is that they can’t find a lawyer willing to take the case,” said James Lewis Griffith Sr., a veteran malpractice attorney in Philadelphia. “The average case costs at least $50,000, and often more, for the plaintiff’s attorney to put together. If the recovery isn’t at least 6 figures, the lawyer can’t afford to take the case. That’s why out of every 20 patients injured by a doctor, the odds are that only 1 or 2 will be accepted by a lawyer.”
Families Want Candor More Than Money
Patients and families often seek out attorneys when the physician avoids them following a poor outcome. “The patient naturally thinks the doctor is trying to cover something up,” said Joseph McMenamin, a defense attorney in Richmond, Virginia. “For many families, their motivation in filing a lawsuit isn’t necessarily financial. They want to find out what happened, and what the doctor or hospital will do to avoid making the same mistake in the future.”
“I had a case where a premature newborn developed seizures. It was later determined that the baby’s IV contained insulin that wasn’t intended or indicated,” he said. “The baby suffered severe brain damage. The family ran into a brick wall when they tried to find out why this happened. The ICU administrator was so distressed by the mishap that he simply couldn’t face the parents. This went on for days. The family lawyer told me that his avoidance of them was the main reason they were so determined to sue.”
Even in catastrophic cases, though, patients may decline to sue if the physician is candid about the mistake, expresses sympathy, and spends time with them.
“An elderly patient was diagnosed with lung cancer,” said Stephanie Sheps, director of claims at Coverys, a professional liability carrier based in Boston. “When the radiologist checked a prior film, he found that the mass was present in the prior study also and that he had notified the FP at the time. The FP never followed up on it.”
“The case would have been a slam dunk for the patient. He was coming in to see the FP that day. Without any euphemisms or excuses, the FP explained the error and apologized. He spent a lot of time focusing on what it would take to help the patient recover. On the basis of their long-standing relationship, the patient never sued.”
James Griffith tells of when the chief of surgery at a major teaching hospital called him from the operating room. “He was trying to show a resident how to remove what he had good reason to think was a harmless polyp. But it wasn’t a polyp. It was an aneurysm. The patient died within seconds. ‘What should I do?’ the surgeon frantically asked me.” “I told him to go to the family immediately and explain what happened exactly as he explained it to me,” said Griffith. “The surgeon said, ‘But they’ll sue me.’ I agreed. I told him, ‘They’re probably going to sue you anyway, but at least they can’t say you weren’t honest or caring.’ The surgeon was candid with the family, apologized, and expressed his deep remorse.” “The family was naturally upset. But 2 weeks later, they asked for a meeting. The family said they knew the surgeon did the best he could and that it was an honest mistake. They were impressed that he was honest with them. The family decided not to sue. The decedent had a will and left a substantial amount of money to the university. The family said they wouldn’t contest that. Honesty is always the best policy.”
Saying “I’m Sorry” Doesn’t Admit Liability
Saying “I’m sorry” after an adverse outcome doesn’t have to mean that the doctor is admitting she did anything wrong. It’s an expression of empathy that acknowledges the mutual disappointment felt by the doctor and patient, said Doug Wojcieszak, founder of Sorry Works, a program that trains healthcare providers and attorneys on how to disclose errors or poor outcomes.
“People sue when trust is broken between the family and provider,” he said. “When there is early disclosure of an error accompanied by empathy, it’s easier for the patient to be forgiving. We’re a forgiving country, but we hate cover-ups.” “Simply say that you are sorry the event happened and you feel bad for the patient and his family,” he said. “Acknowledge their feelings; promise an investigation; and assist with any immediate needs, such as lodging or transportation, if needed. Show you care. Document the chart accordingly, without emotion or speculation. Write down what you said, what you promised, and any questions or comments by the family.”
Some families have worked with hospitals to institute patient safety classes named after an injured patient. Early-disclosure programs also diffuse anger. Under a pilot program in Massachusetts, once an adverse event is identified, the provider will call the hospital risk manager and insurer. “They do an analysis of what went wrong and why,” said Stephanie Sheps. “If it’s determined that harm was caused by avoidable error, they would disclose that to the patient and consider offering compensation, if appropriate. All of this can occur before the family has even consulted an attorney.”
Other Reasons Patients Never Sue
There may be a class of patients who might be called “conscientious objectors” when it comes to lawsuits. For a variety of reasons, they won’t sue their physician or hospital, even if the injury is catastrophic.In general, elderly patients are less likely to sue. “They still have a certain reverence for the medical profession,” said
In general, elderly patients are less likely to sue. “They still have a certain reverence for the medical profession,” said Stephanie Sheps. “They’re more willing than younger people to give doctors more latitude.” Dr. Armand Leone agrees. “People who have experienced adverse events in their lives and gotten through it are more forgiving.”
Some patients worry that filing a lawsuit could impede their ability to receive needed ongoing care, Sheps said. “If the harm is not permanent and the patient has more treatment to go, he may not want to rock the boat. If he feels that he’s been well cared for overall, he will continue to want to be a model patient, believing he’ll get treated better that way.”
“Some individuals have values that acknowledge that no human endeavor is perfect and errors will occur,” said Dr. Gerald Hickson. “They feel that nothing will be gained by taking this painful process into a courtroom. Some believe that a poor outcome may have been inevitable or God’s will. The experience may have been painful, and a lawsuit will only force them to relive these events. Litigation is a stressful experience, and some people just can’t stand to be confrontational.”
Many patients who describe themselves as religious aren’t inclined to sue. “I’ve practiced law in Pennsylvania for over 40 years, and I’ve never heard of an Amish person suing a doctor,” said James Griffith.
“People in such places as Chinatowns or orthodox Jewish communities are reluctant to sue,” said Dr. Leone. “In some tightly knit ethnic communities, there’s a real risk for ostracism if a patient sues a doctor of the same religion. These communities can have their own parallel judicial systems. You need approval from the community leaders to file a suit in civil court.
“I had a case where a man in his late 30s had a devastating heart attack. He needed extensive care and had a wife and 3 children. The liability of the physicians was clear. But the community leaders opposed the lawsuit and the patient’s family felt they would be ostracized if they went against their leaders’ wishes.”
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Cite this article: Patients Who Won’t Sue Their Doctors — Even When They Could. Medscape. Nov 25, 2013.
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