Surviving the Malpractice Storm

If you’re named in a malpractice suit, chances are you’ll go through every emotion, from denial to anger. But with these tips, you can get through it—with both your sanity and your career still intact.

By By Karen Childress | Feature Articles | Winter 2011


Peter Moskowitz

"Almost without exception, the physicians that I've watched go through this suffer terribly because of their own perfectionism." - Peter Moskowitz, M.D. is founder of the Center for Professional & Personal Renewal in Palo Alto, Calif.

Chicago ER physician George Hossfeld was notified that he’d been named in a malpractice suit more than two years after he’d stabilized an acutely ill elderly gentleman and admitted him to the ICU. Because his contact with the patient had been brief and he had provided appropriate care, Hossfeld assumed he’d be dropped from the case once the facts became clear to the plaintiff’s attorneys. “A good percentage of the time when a doctor is named in a case, he didn’t even see the patient, or was peripherally involved. You just wait to find out what’s going on.” In Hossfeld’s case, he waited five years to be dropped, only to find that ultimately he was on trial all alone, and that the plaintiffs were asking for damages beyond his malpractice coverage limits.

“It wasn’t fair, but fair has nothing to do with it,” he says. “It was very surprising to me, but right and wrong have little to do with it. Even more stunning, quality of care has little to do with it.”

“I went through stages like someone with a terminal diagnosis—disbelief, anger, rationalization (of course I’ll be dropped…), and then almost grieving. I was anxious and irritable. I felt like my home and my kids’ college might be on the line. I thought, well, if it’s been this unfair to this point, maybe I’ll be found guilty.”

“I like to think of myself as pretty tough ER doctor,” says Hossfeld. “After my six-day trial, I was just physically and emotionally limp. I was so drained, I felt ready to pass out.”

And Hossfeld—like the vast majority of doctors who end up on trial for medical malpractice—had won his case.

By the numbers

Attorney Steven Kern is a principal with Kern Augustine Conroy and Schoppmann in Bridgewater, N.J. He has been representing doctors for more than 30 years. “Before that I was prosecuting them for the New Jersey medical board. I’ve been on both sides,” says Kern. “If you practice for any length of time, the likelihood is that you’ll be on the wrong side of a lawsuit. It’s not a badge of dishonor; somebody just decided to sue you.”

According to a survey of almost 6,000 physicians recently released by the American Medical Association (AMA), more than 60 percent of physicians age 55 and over have been sued at least once. This statistic varies widely by specialty, however, with surgeons and obstetrician/gynecologists being sued the most, pediatricians and psychiatrists the least.

The positive news, also included in the AMA study citing data from the Physician Insurers Association of America (PIAA), is that in 2008, 65 percent of claims were dropped, withdrawn, or dismissed, 26 percent were settled, 4 percent went through an alternative dispute resolution process, and only 5 percent actually made it to trial. Of that 5 percent, the doctor won 90 percent of the time.

Devin O’Brien, senior counsel and managing attorney for The Doctors Company, a physician-owned medical malpractice insurance company with 46,000 member-customers, says physicians named in suits tend to focus on the long-term ramifications. “They’re usually not worried about the money. They have insurance,” says O’Brien. “It’s their professional reputation, that a report will go to the licensing board and the National Practitioner Data Bank, and that it will be out in the community.”

Malignant synergy

Forensic and general psychiatrist Thomas Gutheil has been involved as an expert in hundreds of med-mal suits over the course of his career. He likes to remind physicians that being sued does not mean they did anything wrong. “Litigation results from the malignant synergy of a bad outcome and bad feelings,” says Gutheil.


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