Good Medicine: Prescription for Malpractice Litigation

“It is much more important to know what sort of a patient has a disease than what sort of a disease a patient has.”—William Osler, MD

The Indianapolis Star recently reported that the rates physicians pay to participate in the state Patient’s Compensation Fund will decrease by 19.1% beginning in March 2008—the first decrease since the fund was established in 1976. Medical malpractice insurance rates have also stabilized or declined in several other states where the insurance markets have softened.

But don’t start celebrating just yet. “In most states, rates are still higher than they were in 2002,” explains Jeffrey Segal, MD, a neurosurgeon, and founder and president of Medical Justice Services, an organization that helps physicians fight meritless medical malpractice lawsuits. “Rates may have stabilized in some parts of the country, but if you ask physicians whether they pay too much, too little or just the right amount for professional liability coverage, I think they would suggest that the number is pretty high.”

Wide Professional Impact

Those high numbers, in the form of exhorbitant insurance premiums and litigation costs, have had a dramatic impact on the way America’s physicians practice medicine. Gabriela Cora, MD, MBA, president of the Executive Health & Wealth Institute, teaches an MBA class for healthcare professionals called Issues in Healthcare at the University of Miami. Dr. Cora, a psychiatrist, says malpractice issues have physicians on the defensive, ordering labs or recommending certain treatment plans because they have malpractice issues in mind. Doctor-patient relationships are also being impacted.

“Many physicians who are extremely concerned with malpractice issues are the same ones who have accommodated to the current healthcare practice style in which, if they are associated with many HMOs plus Medicare and Medicaid, the time they devote to their patients has really been cut down,” Dr. Cora explains. “If that time is cut, the first thing that is impacted is the doctor-patient relationship.”

Dr. Segal agrees, suggesting that patients who like their doctors tend to sue them less. “Not because they are less negligent, but because there’s a human dynamic that people sue for all types of reasons,” he explains. “And it makes if easier for patients to cross that threshold if they don’t particularly care for the doctor.”

His firm, Medical Justice, is built on two core components: deterrence and intervention. The former centers on physicians asking patients to sign a contract. Both parties agree that if a genuine dispute over care arises, each side agrees to use only board-certified experts who agree to follow the code of ethics for their specialty society. If frivolous testimony is rendered, that testimony is reviewed by professional conduct committees of those societies, and could trigger a breach of contract lawsuit against the patient and their agent.

Medical Justice currently represents more than 1,600 physicians, and according to Dr. Segal, physicians who are plan members report that virtually all patients are willing to sign the contract. “It has been a pleasant surprise,” admits Dr. Segal, and an effective deterrent. “The average doctor is sued at the rate of 8% to 12% a year. Our physicians are sued at the rate of under 2% a year.”

Good DoctoringDr. Cora says her advice to physicians when it comes to guarding against medical malpractice claims may sound naïve, but it focuses on practicing good medicine. “You must rely on good guidelines,” she says. “You rely on science, having some good protocols that you use over and over again, and establish a good reliance with the patient to serve them in the best possible way that you can.”

Echoing the importance of providing good patient service, Dr. Segal explains that medical malpractice claims frequently contain the allegation that the patient called the doctor’s answering service but that the doctor never called back, creating a he said/she said situation.

“If it’s after hours, there may not be a paper trail to support what actually happened,” Dr. Segal says. “What we recommend is that the doctor call the patient back on their cell phone. By doing that, they create a paper record that the physician made a call to a specific number at a specific time. Three or four years later, it could be the life preserver that answers the question, did the doctor actually call back?”

Dr. Segal says that it may come as a surprise, but he actually looks forward to the day when his work is unnecessary. He points out that more than $100 billion is spent annually on defensive medicine and tactics to keep physicians out of the courtroom—a dollar amount that could be used to purchase some type of health insurance policy for every uninsured American.

“Our litigation system is pervasive; it affects physician behavior in a pervasive way,” Dr. Segal says. “At any given moment there are between 50,000 and 60,000 open medical malpractice cases. And if you’re a defendant, it will change the way you practice medicine in the future. You will never be the same.”

Ed Rabinowitz is a veteran healthcare reporter and writer. He welcomes comments at edwardr@ptd.net.

$606,907—Average medical malpractice jury award; $311,704 is the average settlement.(AMA, 2007)