Frivolous Malpractice Suits, Part II

E. Rawson Griffin, III, M.D.,
President of Clay County Medical Society

Because it is such an important issue, I would like to continue and follow up on my article from last month and my discussion of what is felt to be frivolous malpractice suits. I would particularly like to pay attention to one of the references given last month, an article from the Annuals of Internal Medicine from May of 1994 entitled "Characteristics of Potential Plaintiffs in Malpractice Litigations." The conclusions of that article were as follows:

Attorneys reviewed 730 callers over 10 randomly selected days in 1991. These were people who thought they wanted to file a lawsuit. The alleged claims were then reviewed by a physician and nurse who wrote that particular article. In their conclusions they stated, "On the basis of our knowledge of each suit, we believe few, if any, of the 24 cases placed in litigation were filed in error or in a frivolous manner." Strictly from those numbers, you can tell that even though there were 730 callers, only 24 cases actually ended up being placed in litigation. It is true that some attorneys are excessively litiginous or not medically enlightened and file frivolous lawsuits. However, this is the minority as most plaintiffs' attorneys research their cases at length and get expert review prior to filing such suits. It is true that some cases and some claims may be unmeritorious. The initial allegations may in fact be totally defendable, but this does not mean that the suit is totally frivolous. It does not mean that there has not been some breakdown in the doctor/patient relationship that led to the search for the family and/or the patient to file a lawsuit.

Physicians also fail to totally understand tort law. In order for a physician to be found guilty and for the litigation to be successful, four basic legal concepts and legal requirements have to be met: 1. The physician has to have a doctor/patient relationship with the patient. 2. The physician has to have deviated from the acceptable standard of care. 3. The patient has to have suffered an injury as a result of the treatment. 4. Causation has to be found in that the physician's deviation from the standard of care directly caused the injury the patient received. Unmeritorious cases are those in which a plaintiff erroneously acquires injury or less than a desired outcome with negligent treatment. It is only after unsuccessful litigation that many plaintiffs understand these basic concepts. Regardless of the outcome, a physician is not negligent if he or she possesses and exercises the same degree of skill and learning reputable peers possesses and would have exercised under similar circumstances. The law neither requires physicians to be perfect nor judges them solely on the outcome of their care and treatment. Medicine is still not an exact science, and the law gives the physician broad latitude to make skilled judgments, recognizes diversity of treatments, and does not consider a physician's inability to care, but resolves a condition indicative of incompetence or negligence. If a physician has followed the standard of care, in all cases, he is not negligent. Even if a physician does not follow the standard of care, if it cannot be found to have caused the injury, then in those cases alone, negligence is not found. In those cases, the physician should be found not guilty.

However, if he did not follow the standard of care and he did not keep complete medical records to prove that, that does not prevent him from being taken into court and having those aspects of his care questioned. Physicians could greatly reduce litigation by paying attention to simple things. The Physicians and Insurance Association of America has found that physicians lose their cases in studies of breast, colon, and lung cancers because they omitted routine examinations or tests, and did not take adequate family and medical histories. They did not communicate effectively with their patients or other physicians, they did not follow their patients appropriately, and they did not have meaningful documentation of care or treatment. In addition, in order to prevent litigation, it is important that we communicate well with our patients. We should tell our patients more and we should criticize our colleagues less. Clearly, if we are not aware of all of the circumstances of the case, we should not publicly criticize a physician or criticize a physician in front of patients. Additional comments in the study from the Annuals of Internal Medicine where patients decided to seek help from an attorney, one of the largest reasons that they sought attorneys was because of poor relationships with providers and with impressions of not being kept informed or appropriately referred. These clearly speak of communication issues that we as physicians must address. Better communication will help reduce the number of malpractice cases. Litigation is clearly not the solution to everything. In our current system of litigation to solve disputes does not necessarily deter medical negligence, resolve disputes fairly, nor provide timely compensation for injured parties.

Medical liability reforms should nevertheless, however, also include legislation to amend erisa so that managed care companies are subject to the same risk of liability as our physicians. It is clear from the past few years that managed care companies do, to a degree, try to govern the range of physicians' practice decisions. Therefore, managed care companies should be held to the same standard of accountability. Until we find a better system in which to resolve disputes, our current tort system is the law of the land. We need to learn to work within the system that we have and everybody needs to work from the same level playing field. Physicians could greatly reduce malpractice litigation by being careful to provide an adequate standard of care and to document directional care.

February, 2001/ Jacksonville Medicine

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