How to squash a small malpractice claim

July 10, 2000

Should you use some of your own funds to compensate a disgruntled patient? Sometimes that makes sense, this lawyer argues.

Should you use some of your own funds to compensate a disgruntled patient? Sometimes that makes sense, this lawyer argues.

No matter how slightly they've been injured, some patients don't hesitate to find a lawyer. Many malpractice suits don't belong in the courts, though, even when the patients are in the right.

I'm talking about instances where the physician clearly made a mistake, but the patient suffered little or no harm and damages wouldn't top, say, $15,000. These claims can be dealt with swiftly, to both the doctor's and patient's satisfaction, with minimal involvement from attorneys or malpractice insurers.

My biggest stumbling block in swiftly resolving such cases has been getting the physician to admit his mistake. This has been especially tough when the error resolved on its own or was quickly discovered and corrected.

I'm reminded of a woman who came to my office after having had a LEEP. The physician had sent her home with packing, but soon after that, she began hemorrhaging so profusely that her husband had to rush her to the emergency room. The gynecologist who'd done the surgery met her in the ER, discovered a cut blood vessel, and repaired it. Naturally, the woman was weak afterward, but she made a full recovery. Usually I turn away minor cases like this, and I told the woman so.

"I'm not going to turn the other cheek just because I'm fine now," she told me.

Her husband chimed in. "She bled all over. We had to replace carpet in the bedroom and living room, plus have the backseat of the car reupholstered. It was a mess."

"What are we supposed to do?" the woman asked. "Forget the whole thing?"

Not at all, I replied, adding that she deserved to be compensated. However, a full-blown malpractice suit probably wouldn't earn them enough to justify the considerable time and expense that would be involved. Although I didn't tell the couple this, it also would have been ridiculous to burden the court system—not to mention the gynecologist—with this type of a malpractice claim, even though I'm sure the patient and her husband could have found an unscrupulous lawyer willing to take the case and magnify her suffering.

What to do, then?

I called the gynecologist and explained the situation. I told him I wouldn't file a complaint until after he'd contacted his malpractice carrier—something any physician should do when there's even a hint of a lawsuit. I also suggested that if we could agree on an appropriate settlement, he'd be wise to pay it out of pocket.

"That's ridiculous!" he said. "That's why I have malpractice insurance."

"The carrier may settle the claim," I replied, "but any payment it makes would be reported to the National Practitioner Data Bank."

While he considered this, I continued, "Even if you decide to pay the claim yourself, your insurer will still review the case and help with your legal counsel. It will also draw up the release that my client will sign to hold you harmless from any further claims in this matter."

A week later, a representative from the gynecologist's carrier called to say that its experts would review the case, and that she would get back to me soon. In the meantime, I promised not to file suit.

Within a month, we agreed on a $15,000 settlement. After considering his options, the doctor decided not to dip into his own funds, the data bank be damned. He was, however, spared the headaches and annoyance of a prolonged period of litigation. My client was happy, too: She was compensated to her satisfaction, faster than she'd ever expected to be.

In another case, I called a urologist to discuss a patient in whom he'd incorrectly inserted a penile implant. The doctor had placed both parts on the same side of the penis, instead of putting one on each side. In pain and still impotent, the patient saw a second urologist, who removed the implants and reinserted them correctly.

Confronted with these facts and the records of the case, the first urologist put up no fight, and the next day we settled for $7,000. I had my client sign a release and promptly forwarded a copy to the physician, who then mailed me a check. He chose not to notify his carrier.

Another doctor, an FP, also decided it would be best to settle quickly and quietly, using his checkbook. The case involved a young woman who'd been taking a drug to control her seizures. The doctor typically prescribed 100-mg tablets, which she was to take three times a day. But he inadvertently wrote her a prescription for the drug's 300- mg version.

After a day on the higher dosage, the patient became delusional and combative. Her mother called the doctor, who instructed her to discontinue her daughter's medicine immediately. Soon the young woman returned to normal, but the FP clearly understood that his mistake could have had dire consequences. He settled for $6,500. Like the urologist, he decided not to involve his malpractice insurer.

Although these cases were resolved quickly and rather amicably, I occasionally encounter a doctor who tells me to bug off, despite the facts. He or she is willing to further anger a patient and risk inflating a minimal claim into a complicated and protracted lawsuit.

Consider the recent case of a nurse who fell in her backyard. In great pain, she visited her internist, who diagnosed a torn hip muscle. He prescribed painkillers, told her to take it easy, and asked to see her again.

A week later, she hobbled back to his office. The internist referred her for physical therapy, but because of the intense, persistent pain, the nurse quit after three sessions. She called the physician, who told her pointedly to get herself together and get back to work.

Five weeks later, the nurse, who was still barely able to walk, went to an orthopedist she knew at her hospital. After he heard her story, he said, "The way you move, I'd think your pelvis is fractured. What did your films show?"

"What films?" the RN asked, fighting back tears. "No one ever X-rayed me."

Sure enough, X-rays showed a broken pelvis. The orthopedist assumed her care, but months passed before the nurse could bear full weight on her hip. During her recovery, she used up her sick leave and dipped into her vacation time. A year and a half after her accident, she came to me angry and hell-bent on suing the internist.

"Yes, I'm healed now," she began, "but he should be made to pay. Maybe then he'll be careful not to put anyone else through such an ordeal."

Still, because she'd made a complete recovery, it seemed unlikely that damages would exceed a few thousand to cover the paid leave she'd had to use, plus a small punitive amount—no more than $15,000 in all. I told her I'd approach the internist directly, and perhaps we'd get him or his insurer to settle quickly. But the physician was, shall we say, less than agreeable.

"I did nothing wrong," he sniffed. "She was in pain but walking pretty well. There was nothing to indicate a fracture. You're trying to get something out of a nuisance claim."

"This is no nuisance suit," I countered. "This patient had a fracture."

"Baloney!" he shouted. "She probably fell after the initial fall."

"I doubt that."

"Yeah, well, I'll talk to my malpractice carrier, and they'll get back to you."

Figuring that could take weeks, I filed a claim against the doctor, because we were approaching Pennsylvania's two-year statute of limitations. At present, the suit is pending. My client is still steamed, especially in light of the doctor's attitude. Everywhere she goes in her small community, she spreads the news about what that internist did to her. Now, she associates her every little ache and pain—even those unrelated to her hip—with the doctor's callousness. Not surprisingly, she's also seeking a lot more compensation.

Is this lawsuit really to anyone's benefit? It certainly won't help the doctor, who is now involved in a big case that everyone in his small town is talking about. It won't help my client, who is becoming angrier and more bitter as the case proceeds and isn't likely to net any more from a court judgment than she would have from a reasonable out-of-court settlement. Nevertheless, she could land a much larger award if the jurors feel sympathetic toward her and want to teach the internist a lesson.

If patients and doctors would deal with valid, small claims in a straightforward manner, both parties would be better off. Everyone should realize that many of these cases are best dispensed quickly and simply, before they escalate into personal and public relations nightmares that can tarnish lives and careers.

The author, a malpractice attorney in Waynesboro, PA, represents plaintiffs and defendants.

Experts warn:
Never keep your carrier in the dark

We asked several attorneys and liability insurance executives for their reactions to the accompanying article. While they agreed that small claims should be dealt with expediently, they stressed that you should never settle any dispute with a patient without first contacting your malpractice insurer.

"The patient's attorney doesn't represent you, nor is he or she obligated to consider your best interests or provide you with legal advice," says David Karp, loss prevention manager at Medical Insurance Exchange of California, based in Oakland. "Contacting your insurer, on the other hand, guarantees that the case will go through peer review before any action is taken.

"If you fear that the carrier won't handle the claim adequately or will overreact to it, you ought to find another insurer. Pronto."

Worse, these experts say, some medical malpractice carriers can refuse coverage if you don't tell them about a claim you paid out of pocket. "If the patient reneges on the settlement agreement or a court finds that it's unenforceable, you may be sadly surprised to learn that you've voided your coverage," says James Lewis Griffith Sr., a malpractice attorney in Philadelphia.

"Work with your carrier," he urges. "If it thinks it's in your best interest to settle, then you can decide whether to use your own funds."

However, while out-of-pocket payments aren't reportable to the National Practitioner Data Bank, you may have to notify your hospital's credentialing committee, your licensing board, or other accrediting agencies of any settlement. "If a claim was made and money was exchanged, some of them may want to know about it," Griffith says. "Hiding it isn't worth losing your license or privileges."

Despite the fear that a potential lawsuit may engender in physicians, medical malpractice insurers typically won't settle cases worth $15,000 or less, according to Steve Kern, a health care attorney in Bridgewater, NJ. "Fifteen or 20 years ago, insurers were willing to pay small amounts to make these cases go away," he says. "Finally, they realized that a plaintiff's attorney wasn't going to spend thousands of dollars on a case that might result in a small settlement. So now the insurers are calling the attorneys' bluff, daring them to file a suit and go through the whole litigative process. And you know what? The number of small suits has gone down.

"There may indeed be merit in the $10,000 or $15,000 suit," Kern adds, "but you're rarely going to find a plaintiff's lawyer who'll take it beyond a phone call or a letter to the doctor."

Moreover, paying out of pocket to avoid a public relations scandal could actually invite one, Kern says. "The patient could tell everyone in town, 'Not only did Dr. Smith make a mistake, but he paid me to keep quiet about it.' Then he might blab the same thing to the doctor's licensing board. I've seen that happen a couple of times."

—Dennis Murray, Senior Editor

 

Evelyn Bradford, JD. How to squash a small malpractice claim. Medical Economics 2000;13:121.