Usually It’s Cheaper to Pay Than to Go To Court

Opinion.jpgI’ve written before about medical malpractice and the rising costs for physicians of all specialties. One of the things we as physicians really fear is malpractice lawsuits by patients. We are taught in medical school and in training that the number one way to prevent a lawsuit is to talk to the patient and address their concerns. If a mistake is made, it is best to come forward in advance and let the patient know that a mistake was made. Perhaps the mistake was made by the physician, perhaps by the hospital, perhaps by another physician that the patient previously saw. Usually an apology will prevent a lawsuit.

Physicians all take an oath to do no harm and to always do what is best for the patient. Unfortunately, patients do not take an oath to protect their physicians from harm. Thus there are times when a physician does the right thing but an untoward outcome still results. Some illnesses and diseases and procedures are not “cure-alls” and the patient must know this in advance.

When things to escalate and a patient files a malpractice lawsuit, it is generally easier and cheaper for the physician to settle the claim out of court. The cost of settlement usually is far less than the cost of litigation for lawyers and for time spent. Additionally, the mental stress of an ongoing lawsuit can be disruptive both to professional and personal life for the physician.

One effect of settling claims outside of court is that they go on your record. When a patient looks up your public record, he or she can see that you settled a claim. Additionally, when you go to renew your malpractice insurance, your premiums will increase. Sometimes, it will prohibit you from renewal because you are considered “high-risk”.

Studies have shown that patients who ultimately file a lawsuit are looking for something from the physician. Usually it is time and attention and not money. Unfortunately, money typically is the solution when it gets to that point. Unfortunately, given that the system is set up so that physicians settle out of court, the physician can be penalized by frivolous claims.

Some people think that such is the risk we take to serve others as physicians. Others suggest that there needs to be reform. I’m not exactly sure what the answer is, but one side effect of this messed up system is that physicians become very picky about who they accept as patients. If someone appears to be litigious or very high maintenance then a physician may defer care to another physician in order to reduce risk. In an elective situation, this is probably not that big of a deal. In an emergent situation, it can be life threatening.

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  • Brain: I disagree with cheaper to settle. Let’s say, there is some chance of losing $100k in court. The offer is to settle for $10K. Pretty irresistible, no? Insurance saves on trial cost, on a risk of an adverse verdict. The doctor goes back to work, forgets the case. He spares self 1000 hours of worry. The $10K is from other people’s money. He can even admit to no malfeasance and demand that the settlement not be reported to the National Practitioner Data Bank.

    How can anyone lose by settling?

    The lawyers learn from case experience. Thus, across the country, dozens or hundreds of cases will get filed to make an easy $10K.

    One should settle only if one feels one has made a mistake that hurt a patient.

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  • From a patient’s point of view, it’s ambiguous. Having run in to my share of none-too-competent doctors (including the one who said my mother was a crock — his term! — while she was on her deathbed), I know the fact that a person is bright enough to get through the rigors of medical school doesn’t necessarily make her or him competent to practice the art & science of medicine. But on the other hand, absent obscene insensitivity and brain-boggling stupidity, doctors, being human, make honest mistakes for which neither they nor we (as none-too-competent patients) can be blamed.

    Economics be damned, I guess if I were a doctor I would not fold my tent and creep away unless I had committed an error that was truly the result of incompetence.

    One wishes the system were better. But given what we have to work with, we all need to stand up for what we think we have done right. Or at least NOT done egregiously, pig-headedly, stupidly wrong.

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  • Deoxy

    Let’s say, there is some chance of losing $100k in court. The offer is to settle for $10K. Pretty irresistible, no?

    The thing you are forgetting is that it will cost $10K (or more) just to defend against the suit, and that’s if you WIN.

    AND there’s often a penalty for being sued too much, even if you win them all (in terms of med-mal insurance).

    The physician’s position is thus lose-lose.

  • D: The lawyer has to spend money to bring a claim. So, a track record of success encourages more of the same.

    I propose not just the standard defense. I suggest hiring a private lawyer to put the fire under the chair of the underpaid, under-skilled insurance defense lawyer. Every possible preliminary motion should be filed. If a motion fails, the defense attorney should know, she will be fired. That is the Walmart system. That way, the defense attorney does not get rewarded with trial fees for failing pre-trial motions.

    I also would absolutely demand sanctions from the judge against the plaintiff attorney and plaintiff expert for every infraction. One has to use every word said or written in gotcha. If the defense attorney refuses to write these, because of needing the fees of a trial, I would write the complaints to the judge personally. Ordinary language is fine. For example, one could say, the claim in the resume of the expert is false. Then submit the highlighted resume, and the evidence that the claim is false. The judge will find that helpful. Do not make the judge do work. He is not allowed to do your work of advocacy, nor to do any other investigation. If he did, he could be impeached. Lay out the evidence in one communication.

    One should also file ethics charges with the respective licensing boards, against both. These valid complaints to insure the other side lives with uncertainty as they have insured the innocent defendant has to. I oppose frivolous complaints against the plaintiff side.

    Doctors should settle cases if they are sure they made a harmful mistake, and not to avoid the conflict of litigation. That is a legitimate purpose of malpractice insurance. I oppose a vigorous defense to maintain pride.

    The extra effort shuts off future lawyer cottage industries. I am disappointed when pharmaceutical companies take the short sighted cowardly route. I may try to alter the balance of fear by suing them as a shareholder, to whom they owe fiduciary duties to defend these bogus lawsuits.

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Dr. JC is a medical doctor who has a passion for health promotion and education.

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