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The Law: Trial Lawyers Tell All
They told us what they look for in a juicy malpractice claim. Now we’re telling you.
By Shirley Grace

…And Justice For All

Remember in the movie Crocodile Dundee, when a trio of thug wannabes in New York City tries to rob Paul Hogan with a knife, and Hogan says, “That’s not a knife; this is a knife,” and he pulls out an impossibly large and menacing blade?

Medical Justice Services is sort of like that, if a bit slower to escalate. “We’ll start with a butter knife and work our way up to a machete,” says Jeffrey Segal, MD, who founded the Greensboro, N.C.-based organization in 2000.

A membership-based group that helps physicians deal with both the possibility and the reality of being sued, Medical Justice focuses first on prevention. The organization helps shield its doctors from frivolous lawsuits, using such tools as a physician-patient contract. With this, the patient promises not to sue for frivolous reasons. “If a legitimate dispute does occur, each side will use a board-certified expert” to evaluate the case, says Segal. The “big knife” here is the fact that it’s a lot easier to sue for breach of contract than to counter sue for malicious prosecution.

If the case does proceed, Medical Justice stands behind its members with early intervention tactics. This includes the thorough vetting of the plaintiff’s expert witness, and pointing out to the plaintiff that it would be a waste of time to pursue the case. Not by sending Vinnie the Enforcer, mind you. Rather, they approach the issue with calm reason and supporting facts. “We try to tailor our rhetoric not to inflame,” says Segal.

If necessary — and usually it isn’t, because the first two steps have proven very effective — Medical Justice will launch a prodigious counterclaims offensive. “We surround ourselves with innovative thinkers and talented lawyers,” says Segal, a board-certified neurosurgeon who now works full time for Medical Justice.

How scary, getting served with an “intent to sue” letter. “It’s an unfamiliar venue for doctors,” he says. “We’re trained as healers, not lawyers.” Segal was himself sued back in the 1970s, when he was practicing in Indiana. “My case was dismissed a few weeks before trial, but I still had to spend a few years working through the muck.”

Currently, 1,600 physicians avail themselves of Medical Justice’s services. Does it work? Only 2 percent of these actually get sued annually — compare this to an 8 percent to 12 percent chance for nonmembers, according to Segal.

Note that Medical Justice is not a medical malpractice insurer. Think of its offerings more as adjunct and collaborative to the protection of insurance. “Our goal is pretty simple,” says Segal. “To address all the emerging threats that physicians face. As we see them coming, we try to weigh in.”

Shirley Grace is a senior writer for Physicians Practice. She can be reached at sgrace@physicianspractice.com.

This article originally appeared in the April 2008 issue of Physicians Practice.

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In Summary

Trial lawyers know that most patients sue their physicians because of a lack of communication from the physicians, and hence, the patient perceives malpractice.

Here’s what lawyers look for as they evaluate whether to take a malpractice case:

Is the plaintiff’s lifestyle significantly compromised physically, mentally, and/or economically?

Is the chart documentation unclear, or worse, lacking?

Is the case backed up by an immutably qualified expert’s testimony?

Is the plaintiff likeable?

Here’s what trial lawyers suggest physicians do to protect themselves against a lawsuit:

Be nice to your patients and develop good relationships with them.

Connect with referring specialists.

Know your patients’ medical histories.

Document well and never alter any record without indicating it is an addendum.

Stay within your area of expertise. Many physicians get themselves into trouble by adding ancillary services for which they’re not qualified.

Disclose any medical errors, and apologize — properly.