Advice for Physicians to Avoid Malpractice Litigation

SEPTEMBER 24, 2019
MD Magazine

Simon D. Murray, MD: We have a little bit of time left. I want to ask you, how can I avoid being sued? What’s the best thing I can do?

Glenn Bergenfield: Well, I think one is, don’t be late when you see your patients. Doctors oftentimes, lawyers too of course, keep people waiting. I think that’s a terrible way to start off a relationship. Everyone thinks that they’re about as important as their lawyer, certainly, and maybe sometimes they think it about the doctor.

Simon D. Murray, MD: Yes.

Glenn Bergenfield: The whole notion of treating your patients with respect, even though they bring in their Google Sheets and say, “I already know.” I’ve done this with my doctors, I’ve said, “I know what I want you to do here.” It’s a ridiculous thing for a doctor to hear, but you have to listen to it I think. That’s just a change in medical practice. And to keep after things. Like if you put in a note that they have to come back in 30 days, take the responsibility on yourself to at least make the attempt to get the person to come back. Don’t just leave it for them to come back. Make an attempt to contact them.

There are apology laws in many states when a bad outcome does happen. You’re free to apologize. It may be a good idea. I’m sure that’s the human impulse, something terrible has happened, and you want to say, “I’m so sorry, I thought this operation would help you, and it’s made things worse, or it’s kept them the same. And I’m so disappointed too, I’m sorry.”

In most states that’s something you could do that would not be admissible.

Simon D. Murray, MD: New Jersey being one.

Glenn Bergenfield: I think so, yes. And so I think they’re the normal human things that you would do to not get someone irritated or angry with you, to keep them in the loop, keep them informed about what you know. And tell them at the beginning: “I’m going to give you all the news, good or bad. I’m not guaranteeing that this is all going to work out. This is why I’m doing what I’m doing, and here it is.” And a lot of times you’re very busy, most doctors are, and it’s a hard thing, a hard standard to meet. But that kind of a relationship is most likely to get you not sued.

The statistics are that most of the really good malpractice cases are never brought. That may be part of the reason. Some of it’s the mystery of medicine, but much of it I think is that people like their doctors and recognize that mistakes get made, and they don’t necessarily want to sue. In fact, they don’t want to sue.

Simon D. Murray, MD: I think that’s right. I think what they tell us too, basically, is to treat the patients respectfully. You know the old rules don’t apply any more. That “I’m in charge and you’ll listen to what I have to say, and that’s it.”

Glenn Bergenfield: Yes. And you’ll sit in my waiting room for 2 hours while I’m having lunch or something; it’s not going to fly. People don’t see it that way.

Simon D. Murray, MD: Which is why you could also argue that many people who practice “quack” medicine don’t get sued. They tend to be really nice.

Glenn Bergenfield: Like the charming ones who might be terrible doctors, right, of course.

Simon D. Murray, MD: And the good ones like guys who practice high-specialty medicine may be busy, they often will draw lawsuits when maybe it’s not....

Glenn Bergenfield: Right. And maybe when it’s a high-risk kind of practice you’re going to have catastrophic results, which can’t be avoided.

Simon D. Murray, MD: I heard you say earlier that one thing not to do is change your records.

Glenn Bergenfield: Right.

Simon D. Murray, MD: That’s the most important.

Glenn Bergenfield: I’d say ever. Even if you annotate it. It’s like a consciousness of guilt if you suddenly say, “Oh, I got sued,” or, “Things went terrible,” and then I change the record. And I did it honestly, consistent with the code, but it’s like, there’s a principle in criminal law of flight. If you run away from a scene, it’s considered to be evidence of consciousness of guilt. It’s the same thing for doctors, and for lawyers, to just change the records and say, “Well, why did you do it? Because you knew something was wrong here.” At least that you didn’t keep good medical records. You say you told the patient to do something, but it’s not your records until after you got sued. That’s a terrible position.

Simon D. Murray, MD: Yes. The one thing I’d like to tell you though is that lawyers have told me: “Doctor, malpractice is just business, don’t take it personally.”

Glenn Bergenfield: Right.

Simon D. Murray, MD: And I’ve got to tell you, we do take it personally.

Glenn Bergenfield: Sure.

Simon D. Murray, MD: It’s a terrible blow to you, you feel awful about it.

Glenn Bergenfield: Right.

Simon D. Murray, MD: As a group, I’m talking about.

Glenn Bergenfield: Right. And whether you got sued because you can see their point eventually, maybe not the first day, but eventually you say, “OK, I see why they sued me, even though either this wasn’t my best day, or I disagree. I don’t think I deserve to be sued.” I see why someone would think that, why they might do it. Those are all things that you have to come to, you have to get at peace with.

I’ve been sued in legal malpractice once, and my first reaction was, “Are you kidding me? Are you kidding me?” And then I realized I would be the biggest hypocrite at the bar, if me, one who sues lawyers, couldn’t come to terms with the fact that I was being sued, even though I didn’t think I deserved it. I’m sure most of the lawyers I sued had the same reaction: “Suing me for this? Are you kidding me?” But people can have a different view of your work than you have, of course.

Simon D. Murray, MD: Yes, and also the fact that I may feel badly about it doesn’t mitigate the fact that somebody may have been injured. There’s that fact.

Glenn Bergenfield: Right. I mean there are systems. Not ours, but there are systems where they treat bad results, they don’t worry about negligence. We’re a real fault-based tort system, and we’re a fault-based kind of economy. We’re a very competitive economy. There are other countries that decide the best thing to do here if, let’s suppose somebody can’t ever work again but they weren’t the victim of malpractice and somebody was. Should we have such different results with somebody having the same problems? And some systems would say, “No, the point is to make sure that the person is taken care of, not to have a lottery,” is how critics would say it.

Simon D. Murray, MD: Yes. New Zealand is one such country.

Glenn Bergenfield: Yes.

Simon D. Murray, MD: A no-fault system. And I think there are others, many other European countries.

Glenn Bergenfield: Small countries seems to have a better sense of doing that.

Simon D. Murray, MD: Well thank you, it’s been very interesting.

Glenn Bergenfield: I enjoyed it too. I thank you for having me.

Simon D. Murray, MD: I think that’s all the questions I have, thank you.

This has been extremely informative. Thank you for your contributions Glenn, and thank you for joining us. We hope that you found this HCPLive Peers and Perspectives® presentation to be useful and informative.

Glenn Bergenfield: I did. Thank you for having me, it was enjoyable.

Transcript edited for clarity.

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