Risk Management

How to Survive a Malpractice Lawsuit and Emerge Stronger

 By Gerhard W. Cibis, MD

Digest, Fall, 1993

No amount of risk management articles or seminars can prepare a physician for the emotional devastation of being sued. It is possible, however, to emerge from the experience emotionally and personally stronger, with greater equanimity for one’s self, one’s work and one’s patients.

I have been sued twice. In my opinion, both cases were medical no-win situations. The first case involved loss of residual vision in the remaining glaucomatous rubella eye following multiple surgeries performed elsewhere. The second case involved ptosis and amblyopia after an orbital biopsy of suspected rhabdomyosarcoma.

Both cases were tried and rendered defense verdicts. The second case was successfully appealed by the plaintiff and retried. Again, the court ruled in my favor. The defense verdict was appealed again, but this time it was upheld. After nine years of being on this emotional roller coaster, the case is finally behind me.

I think the reason physicians find being sued so devastating lies in the fundamentally different approaches of medicine and law. Physicians learn through books, lectures and clinical observation, then practice under supervision and expect criticisms for their “mistakes.” Mortality morbidity conferences, teaching rounds, peer reviews all are designed to criticize and challenge a physician’s clinical decision making. A good physician listens, learns, interprets, adapts and improves.

Therefore, when a letter comes from a plaintiff’s attorney stating that an “expert” has reviewed the records and finds fault, the conscientious physician immediately assumes there is validity to the charge and second guesses how he or she could have done better and how the bad result, without which there is rarely a suit, could have been avoided. It is the medical version of the “Monday morning quarterback.”

What the physician fails to realize is that attorneys are advocates for their clients. Their goal is to affirm the law in the best interest of their client. Truth, which for doctors means the best clinical result possible given the circumstances, is nearly immaterial to the lawyer who seeks to apply the law favorably to his or her client. The emotional appeal and monetary potential of a case is as important as the medical facts in any decision to litigate. This is the basis of our advocacy system.

Prepare for a Long Battle

When a malpractice notice arrives, prepare yourself mentally for a long battle. This is a marathon. Do not peak too early. Do not expect to settle the case in deposition or by calling the plaintiff’s attorney to explain your side. Do not delude yourself into thinking that the plaintiff will be unable to find experts to testify against you. In the case against me involving the child with ptosis and amblyopia, the plaintiff found three experts, all of whom disagreed as to the reason for my “malpractice.”

Remember plaintiff’s attorneys are not looking for the truth. They are looking for the law as it best serves their client. They may appear sympathetic to you one moment and play hardball the next, depending on which tactic they think will work. What you tell the plaintiff’s attorney will direct his or her concept of the “theory” of the case. The more you talk the more likely it is that the plaintiff’s attorney will stumble onto something not previously considered from which to develop another theory. Therefore do not volunteer extraneous information. Answer the questions asked and do not be evasive, but do not elaborate.

It is important to keep your family involved and informed. As with any adversity or joy, these are the people most important to you. But while talking about your general feelings to family, friends and colleagues is cathartic, avoid discussing details of the case with others, especially health care providers who could be subpoenaed to testify against you.

On the other hand, your own attorney needs access to your unrestricted fears, opinions and medical knowledge. Treat this as a doctor-patient relationship with you as the patient. Go over the facts of the case, especially the medical records, again and again. Each time you do new angles and facets will appear. Do not begrudge the time you spend with your defense attorney. Do not cancel or cut short meetings with your attorney. Thoroughness in preparation comes to the fore during the deposition and especially during the trial. Only through repeated reworkings will you have discussed and considered enough alternatives to see the ramifications of any question and have developed the skill to deal with it, avoiding the intended traps.

Attend All Depositions

Attend all depositions, especially those of the plaintiff’s experts. It toughens you mentally to hear their criticism and recognize its weaknesses and strengths. I found that the facts of the case often were twisted in unbelievable ways. Hearing my opponents’ depositions enabled me to anticipate their theory of the case and develop an effective rebuttal. I also used these opportunities to help explain medical facts to my attorney.

You may find, as I did, that by familiarizing yourself with the office environment, personality and reasoning of your opponent experts, you will be less emotional at your own deposition and in court. Most important, however, your presence at the depositions of the plaintiff’s experts, especially when held in their offices, helps blunt their attack. Just as you feel strange in their presence, they are affected by your presence.

Maintain Faith in Yourself

Maintain faith in yourself throughout this long process. Even if respected peers tell you they would have acted differently, they were not there and did not have to weigh all the factors at the time. You did. When you find some area where you yourself agree you could have acted differently, recall why you did not. You had sound reasoning at the time. Analyze it and with the help of your attorney or your expert witnesses, muster your best arguments to support your course of action. Just because someone disagrees with the course you took does not mean you are guilty of malpractice. In court it becomes malpractice only if the jury believes the plaintiff over you.

Understand that by conveying intelligent concern, thoughtfulness, empathy and a sympathetic personality, you can persuade the jury to side with you. Realize that the jury wants to like you. They want to believe you are a good doctor. Make them wish you were their doctor if they found themselves in a situation similar to the plaintiff’s. To do this you need to convey the same confidence you originally had in yourself and in your treatment of the patient. Do not let subsequent events cloud your judgment.