“It’s nowhere near what the public thinks,” says Kimmel. “In New York there’s no huge payout [for attorneys]. Statutorily, it’s less than a third [of the award]. It goes down to 10 percent … on a sliding scale once you collect over $1 million.”
According to a 2001 study of the 75 largest U.S. counties, conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27 percent of trial cases — compared to 52 percent for all other plaintiff-won tort trials. Even winning a case is no guarantee the plaintiff will see any real cash forthcoming.
Another Justice Department study, using data collected on 43,000 closed cases between 2000 and 2004 from Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas (all of which are required by state law to submit information on closed medical malpractice claims), found that most plaintiff-won claims closed with no compensation to a claimant at all.
Shields up
The threat exists, of course, but you really do have a reasonable amount of control over whether you’ll ever be sued. Prevention is key. The steps to avoiding lawsuits are tried and true and bear repeating.
• Be nice. All the time. “Patients are very forgiving if they like you. Communicate. Talk to them. Treat them like they’re human beings,” says defense attorney Scott Nichols, a partner in the Houston office of Strasburger & Price. “You’re less likely to get sued, and you’re more likely to have a good result.”
Develop relationships with your patients by truly listening to them and validating their concerns. “Try to consider the perspective of the patient. You have knowledge; they have none,” says Kimmel. In these WebMD-centric times, you do have to contend with patients who have read about [insert-frightening-medical-fact-here] on the Internet thrusting the printout at you to prove it. Is it a valid concern? Maybe, maybe not. Address each instance separately. Help your patients to understand what’s good information and what’s claptrap. Embarrassing them by dismissing out of hand such procured information will do nothing to keep communication flowing between the two of you.
• Connect with referring specialists. Levine suggests that you make a point to maintain a dialogue with anyone who treats your patient. “Read the report and talk to the person who did the test,” he says.
• Become a history buff. Make sure you read your patients’ medical histories completely. “Generally, it’s a little nuance that you missed, and then there’s another little sign,” says Levine. “Take the time, particularly if it’s a new patient transferred to you.”
• Document well. “Good, exact notes are the best defense against medical malpractice cases,” says Levine. “You offered a caesarean section, but the patient refused? Write it down.” Include in your notes what you said, what the patient said, any instructions you gave, questions you asked, anything and everything that seems relevant. But for goodness sake, says Kimmel, “Never alter any record without indicating it is an addendum.” Maybe you really did mean to add that notation about how your patient refused a follow-up mammogram, but it’s too late now. Changing a document is the kiss of death in litigation matters.
• Stay within your area of expertise. More and more physicians are adding ancillary services to their practices to shore up increasingly flabby bottom lines (due to decreasing payer reimbursements). Such widening of your scope of practice can be good, but be careful that you “don’t follow the dollar sign,” warns Stuart Grossman, a partner with Grossman Roth, P.A., in Coral Gables, Fla. “We have a lot of people doing a lot of different types of surgeries — a lot of line-crossing.”
A sorry mess no more
Because you’re human, it’s likely that eventually, you will make a medical mistake. Hopefully, it will be minor and easily rectified. But if not, the very best action you can take to avoid a lawsuit is to disclose your error, apologize, and offer restitution. Only in this way — and by having the above list of preventive measures in place already — can you mitigate the possibility of your patient suing you.
Disclosure is definitely something you should be doing; it’s clearly outlined in the AMA’s Code of Medical Ethics. In a few states — Florida, New Jersey, Nevada, Pennsylvania, and Vermont — it’s the law (with more states climbing onto that wagon soon).
