You the physician: Your own worst enemy

March 19, 2010

Barry Lang, MD, JD, a medical malpractice plaintiff's attorney and orthopedic surgeon, admits that doctors have the advantage in most medical malpractice lawsuit trials.

Key Points

The fact is, he says, juries like doctors - a lot more than they like lawyers. If physicians can present themselves to a jury as friendly and honest - the type of doctor they would want to have - then they have a better chance to steer the verdict their way or to settle.

But plaintiff's attorneys love to see a physician's ego take over the personality.

We spoke with Lang and four other expert malpractice plaintiff's attorneys to reveal the strategies they use against combative physicians and how doctors can be their own worst enemies during litigation - not with the negligence that caused the lawsuit, but what happens in the following days, months, or years.

More than $3.6 billion was awarded on only 11,002 medical malpractice claims in 2008, averaging to $326,992 per claim, according to the Henry J. Kaiser Family Foundation. These costly, time-intensive lawsuits mean plaintiff's attorneys are looking for a certain minimum settlement or financial judgment in their favor to try the case. None of the attorneys with whom we spoke would pinpoint their minimum profit goal but said that their ideal case involves a catastrophic loss, such as when a patient suffers permanent brain damage, severe body injury, or death as a result of medical negligence.

Although specialists and hospitals more often suffer the highly publicized, multi-million dollar verdicts, independent primary care physicians are not immune. A 2004 article in the journal Quality and Safety in Health Care reported that 68 percent of 5,921 negligent medical malpractice claims studied between 1985 and 2000 were for events in outpatient settings, most in primary care.

"Most of what I see with primary care doctors is reluctance to refer," says David Paris, JD, partner at Piro, Zinna, Cifelli, Paris & Genitempo, in Nutley, New Jersey. "Sometimes they get in over their heads, not necessarily with a bad intention; they could fail to diagnose a condition that is more serious than they think. It may also involve referrals that have not been documented."

Family and general internal medicine physicians do hold an advantage, because they typically have long-term relationships with their patients. But don't take that familiarity for granted, attorneys warn.

"Patients start to see [the primary care physician] as family and could not think of suing a family member," says Jeffrey Kroll, JD, principal at the Law Offices of Jeffrey J. Kroll in Chicago. "Where that changes is where the physician is caught in some lie about an issue with the care or treatment of a patient."