Frivolous Malpractice Suits

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

Also see Frivolous Malpractice Suits, Part II

Many physicians believe that there are a large number of frivolous malpractice suits that are filed against physicians and that in many cases, experts who are not qualified to testify, testify against physicians in unmeritorious cases. Recent attempts by organized medicine in malpractice reform have centered on insuring that only qualified experts testify and that only meritorious claims eventually are heard. As much as this clearly needed reform, what most physicians do not realize is that malpractice reforms to date have not solved the malpractice problem and the main reason for this is that the best loved tort reforms in fact, do not prevent malpractice litigation because many malpractice claims may be unmeritorious, but they are not frivolous. In truth, only a handful of bogus malpractice claims survive every year, and malpractice reform to date primarily eliminates the pain of being sued and losing a case by restricting the amount of money that is paid or the amount of damages can be assessed. It does not prevent the malpractice case from being filed. Physicians believe that most malpractice claims are frivolous, they in fact, are not. Insurers and defense attorneys are not going to take on cases that do not have some questions of care and some questions of outcome. However, just because a malpractice, does not mean that the physician in fact committed malpractice.

Our legal system today provides a broad range of protections for the physician and in fact, if a physician has practiced the standard of care in almost every case, that case is eventually found for the physician. The law, therefore, gives physicians broad latitude to make judgments and the law in the long run, protect physicians. Physicians could reduce litigation by recognizing that there are a few areas where malpractice litigation flourishes and the reasons for this can be identified. In a series of studies of breast, colon, and lung cancer in paid claims, the Physicians Insurers Association of America found that many physicians who lost their case omitted routine examinations or tests. They did not take adequate medical and family histories, they did not communicate with patients or with other physicians, they did not follow their patients appropriately, and they did not meaningfully document their care and treatment. Having reviewed cases as an expert witness, I can confirm with the Physicians Insurers Association of America has found. I am constantly appalled by the cases that I reviewed were simple, routine history and physical examinations are not taken. In conclusion, the Physicians Insurers Association of America studies suggest that the omission of routine care is what gives physicians difficulty. It is well known that there are preventative measures that physicians and hospitals can take to have a greater impact on malpractice litigation that reduce litigation. One of these is knowing the patients well and why patients sue physicians in your particular specialty.

It is well known that within each specialty, there are high risk areas. In fact, one of the principles that is involved in any malpractice litigation and something that physicians do not understand, is that as the patient's risk increases, the standard of care increases. Clearly, if you are working in an emergency room and a patient comes in with a broken neck, the standard of care in terms of immobilizing that patient's neck and treating that patient, is much higher than if the patient had no history of neck injury. Physicians are not expected to immobilize a patient's neck if they come in with a sore throat. They are, however, expected to do it in the cases of a neck injury. This is just one gross example of where the increased risk to the patient translates into a higher standard of care. Each specialty knows what these high risk situations are and if the physicians pay attention to them, they would have fewer problems. The next area where physicians fail to prevent malpractice litigation, is incomplete, illegible, sloppy medical record keeping. Time and time again, court cases are lost based on the weakness of the medical records. If you have ever been to or seen a malpractice trial, your medical records and the deficiencies in your medical records are actually magnified and the plaintiff's attorneys will take your medical records and have them blown up or magnified on large posters to present to the jury. Then when you have sloppy handwriting and incomplete notes, when it is three feet by six feet in size and presented to the jury, believe me, the omissions and errors are clearly magnified even more so to the jury. I have never seen a complete history and physical magnified to show to the jury. Why? That would be equally impressive as well as being good medical care. When you think about how medical records are, think of it this way: If you had your home inspected and got the report back, and it said looks fine, or you got a $200.00 restaurant check that said some food, or a contract for a major purchase that was not written or signed until weeks after the money changed hands, you would be appalled and would not pay for that service. Why should we consider or think of medical care any differently? Finally, the third reason that patients sue is that we do not tell them enough. We simply do not communicate with patients well enough, we do not listen to our patients, at times, we are arrogant in our speech or demeanor, we do not return telephone calls in a timely fashion, we do not explain in plain language what medical care is needed and why, and do not dispense enough information about the safe use of medications. All of these communication flaws can fertilize the ground for malpractice litigation. Finally, we should stop criticizing our colleagues when do not have the total facts of the case known. There has been more than one high-profile case in the state of Florida where physicians have been charged and/or criticized for inappropriate care, only later to find out that the original criticism was not based on a complete review of all of the medical records. In any deposition that you go to, if you are an expert or a witness, the lawyers will ask you, "Have you had a chance to review the complete record," and that is what they mean, are you sure that you have received the complete record?

You have seen every progress note, all of the nurses notes that pertain to the care of that patient? If there is any doubt in your mind that you have not, then you should withhold judgment until such time as you can review the entire record because in many cases, there would be exonerating or mitigating information that will change your opinion on the case. Malpractice reform will continue as long as we are physicians. However, as much as we try, we cannot prevent patients from suing. As much as we may feel that we put negative incentives into the system to prevent aggressive plaintiff's attorneys from suing, the fact is, anybody in this country can sue anybody at any time for any reason. The best protection for physicians is to practice high-quality medical care and to document that care. In doing so, the risks of malpractice litigation would be lessened.

 January, 2001/ Jacksonville Medicine

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