Physicians: Frustrated and Fighting Back
May 2004
Products that focus on "doing something about"
disgruntled, problem patients and their trial attorneys seem appealing, but
the current new products that put physicians on the offensive do not provide
the results doctors are looking for. Physicians who are truly interested in
reducing their medical malpractice risk would generally be better off by participating
in periodic risk management training and interacting more effectively with defense
counsel.
by Charles
Kolodkin
The Cleveland
Clinic
It is no secret physicians are upset at the high cost of malpractice insurance
coverage. As insurance premiums continue their seemingly never-ending climb
upward, many physicians are motivated to do something in response. The most
common reactions are publicizing the problems of insurance affordability and
availability, seeking rate relief from insurance regulators, and lobbying legislators
for tort reform. But for those physicians interested in adopting even more aggressive
positions, there are a few new products, each employing different tactics in
the battle against the perceived unfair malpractice system.
New Tactics for Dealing with Patients
Some of the new initiatives being promoted to combat the malpractice insurance
problems experienced by the medical community are designed to take the physician
off of the defensive in the doctor-physician relationship. Physicians are being
advised to evaluate a prospective patient's propensity to sue prior to accepting
him. An additional recommendation suggests that patients be required to sign
a form agreeing not to litigate should there be a problem with the care rendered.
Such waivers not to sue often contain a provision that allows disputes to be
taken to arbitration in order to stay away from the lengthy and costly litigation
process.
Physicians have also been advised to avoid patients who have filed medical
malpractice lawsuits in the past, based on the presumption that these people,
on average, are inherently more litigious and that a person who has already
sued a healthcare provider poses a greater risk to the physician, a risk the
physician is best served to avoid. Earlier this year a database was introduced
on the Internet called DoctorsKnowUs.com that tracked litigious persons, including
patients who have filed medical malpractice claims, plaintiff attorneys, and
expert witnesses testifying on behalf of claimants. The site allows a cautious
doctor to check the database and determine whether a prospective or current
patient had once had a dispute with a medical provider. The problem with this
type of approach is the lack of differentiation made between those involved
in "good" or legitimate cases versus those filing "bad" or frivolous claims.
Some may not be surprised to learn that the Web site has gone on a hiatus, apparently
due to both its controversial nature and its inability to detail the legitimacy
of claims brought by patients.
Another new company, a bit more entrepreneurial than DoctorsKnowUs.com, is
also addressing physicians' frustration with the litigation process by offering
a product that claims to enable doctors to fight back against frivolous lawsuits.
The product available from Medical Justice is a legal services benefit plan
that is somewhat akin to insurance. The plan is designed to allow medical professionals
to contest nonmeritorious medical malpractice claims filed against them by supplying
physicians with the tools to file counter-lawsuits and counterclaims against
plaintiffs, their attorneys, and/or medical expert witnesses who helped prosecute
the initial case.
One key feature of Medical Justice is that covered members of the benefit
plan are publicized through a database located on the Internet. Thus, possible
plaintiffs will be able to determine whether a physician they are considering
suing is protected by Medical Justice and likely to countersue. The threat of
legal action being initiated against claimants is designed to have a deterring
effect on frivolous lawsuits.
Average
Cost of Defense Chart
While the Medical Justice product is a benefit plan structured somewhat like
insurance, it is not a substitute or replacement for medical malpractice insurance
and may be more accurately viewed as a supplement to traditional malpractice
insurance. Medical malpractice insurance coverage is structured to pay damages
doctors incur arising from the rendering or failure to render medical care.
This insurance pays for any judgments and settlements made on behalf of a physician
to indemnify a claimant as well the expenses necessary to defend against these
claims. Expenses include, among many things, the fees of the defense attorney
hired to represent the physician, medical consultants engaged to evaluate the
claimant's treatment and condition, and experts who provide testimony at depositions
and at trial.
In contrast, the Medical Justice product covers costs related to examining
the claims brought in nonmeritorious medical malpractice claims and pursuing
appropriate legal redress. Although it is permissible for the physician's attorney
to assert a counterclaim during the defense of the lawsuit, this rarely occurs.
In the event a physician feels there was a frivolous lawsuit made, Medical Justice
promotes that it will pay for an analysis to determine if the case was indeed
frivolous. Should the analysis conclude the case was nonmeritorious, then an
attorney will be retained to proceed with legal action against those responsible
for bringing a frivolous action. Legal action can entail a lawsuit, a complaint
to the professional society, or a request for disciplinary action. The Medical
Justice program will fund up to $100,000 of the cost of pursuing these claims
by the physician.
As one would expect, the program offered by Medical Justice has a cost. Pricing
for the Medical Justice protection depends on the physician's medical specialty
and practice location, but generally ranges from about $750 to $2,000 a year.
Although this sum is considerably less than medical malpractice insurance premiums,
it is not inconsequential and the product purchased merely supplements rather
than replaces traditional liability insurance.
What Should Frustrated Physicians Do?
There is a certain level of helplessness physicians experience as they see
malpractice insurance premiums accelerate and claim severity increase. Products
that focus on "doing something about" disgruntled, problem patients and their
trial attorney supporters seem appealing since they move doctors from the defensive
side of the line to the offensive side. However none of the current new products
seem to hold much promise to get physicians the results they are looking for.
Physicians who are truly interested in reducing their medical malpractice risk
would generally be better using their time and money by participating in periodic
risk management training and interacting more effectively with defense counsel.
Risk Management
Risk management programs that emphasize such activities as comprehensive
documentation will likely be more useful to a medical practice than a benefit
plan funding a countersuit against frivolous litigation. Educating staff members
and reinforcing such risk management principles as documenting all aspects of
the office visit, the patient's medication history, test results, any telephone
calls, and the process for obtaining an informed consent can provide very effective
protection should a physician ever be summoned to court. A good chart with a
complete medical record will be one of the doctor's best allies should an event
turn into a claim.
Underscoring the need for maintaining excellent relations with patients will
go a long way to reducing a healthcare provider's liability exposure. All employees
in a medical practice should be attentive to the importance and need to communicate
with patients compassionately and clearly. Patients should feel like the medical
staff is responsive to their concerns and that they are not being rushed through
an appointment. It has been said that a bad doctor with an excellent bedside
manner is less likely to be sued than a good doctor with a bad bedside manner.
More Interaction with Defense Counsel
Sometimes bad things happen to good doctors, like being on the receiving
end of a nonmeritorious lawsuit. Physicians caught in the complex world of litigation
are often confused by the intricacies of the justice system. The discovery process
during a lawsuit is indeed a time of discovery for most physicians. The meaning
and implications of interrogatories, request for production, consultants' reviews,
expert affidavits, and a myriad of motions are bewildering to those not routinely
exposed to the legal system.
Typically a physician's experiences with his defense attorney are one of
two varieties: (1) little to no real contact, with most communication filtered
through secretaries and legal assistants; or (2) a tidal wave of paper unleashed
on an overwhelmed physician with little explanation. It is not difficult to
understand why physicians are so frustrated when they are made parties to a
lawsuit.
Anytime a physician is a defendant in a lawsuit or is even threatened with
litigation, it is advisable to develop a strong working relationship with the
defense attorney. Although an insurance company customarily retains the services
of the specific defense attorney and is responsible for paying expenses, it
is the physician, and not the insurer, who is the attorney's client. In fact,
the defense attorney has a strict duty of loyalty and must represent the physician-client's
interests above all others.
Therefore, a physician should not be reticent to ask questions of the attorney,
insist on receiving periodic updates on case developments, and seek explanations
about claim strategy. Engaging in this type of relationship with defense counsel
will do much to alleviate the feelings of helplessness or frustration a physician
may have during the course of litigation. Moreover, should a physician find
himself involved in a frivolous lawsuit, he can then have his defense attorney
file the appropriate motions or requests for sanctions in a timely manner and
in association with the ongoing litigation, rather than getting another lawyer
involved after the fact as might occur under the Medical Justice type of programs.
This more proactive method of "fighting back" not only is more cost effective
and efficient in terms of time, but also holds a higher probability of success
for the aggrieved physician.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author’s employer or IRMI. This article does not purport
to provide legal, accounting, or other professional advice or opinion. If such advice
is needed, consult with your attorney, accountant, or other qualified adviser.