Four Common Medical Malpractice Defense Myths

The earth is flat.

Lightning never strikes twice in the same spot.

Man will never fly.

All these were once strongly held opinions, but are now exposed as modern-day fallacies. In the medical malpractice arena as well, claim-related myths abound. Many physicians embrace long-held tenets and preconceptions about claims, not all of which are accurate. Professional liability is a sensitive topic. Some of what passes for conventional wisdom, unfortunately, is a recipe for a claim disaster waiting to happen.

In adjusting medical malpractice losses, insurers, attorneys and claim professionals encounter recurring opinions on and challenges to effective claims-handling. Here are four common medical malpractice claim fallacies, and the reasons why they wilt under close scrutiny.

Myth #1: Insurance Invites Lawsuits; Going 'Bare' Prevents Lawsuits

This tenet confuses cause with effect. More often than not, when they file lawsuits, patients and attorneys do not know if the doctor has insurance or not. They assume it to be so, since most professionals carry it or are even required to have it. Perhaps only later ' in discovery ' will they learn that there is no insurance. By that point, though, the patient or lawyer has already filed a lawsuit.

Thus, being uninsured has not deterred ' and will not prevent ' the filing of claims. To an extent, the attorney or aggrieved patient may not care. They can simply pursue the doctor's personal assets: house, car, future earnings, and so forth. Meanwhile, the physician now loses one huge benefit of medical malpractice insurance: the right to have a lawyer hired to defend the case. The legal insurance provided by malpractice policies is an often overlooked benefit. Doctors can hire their own lawyers, but that can be financially draining.

The best medical malpractice attorneys may be leery of accepting a case from uninsured physicians, due to concerns over when (or if) they will get paid. When engaged by insurance companies, doubts about financial viability and payment are rarely impediments.

Practitioners could theoretically hire 'cheap' lawyers, but then they may get an anemic defense and end up facing a walloping jury verdict. In law, as in medicine, you often get what you pay for. If a physician thinks that hiring an experienced attorney is costly, let him try hiring a cheap one to defend a medical malpractice case.

If a lawyer discovers the doctor is uninsured, it is still unlikely that a patient will simply drop a claim due to lack of insurance coverage. Most doctors are high-income individuals, or at least perceived that way by the public and many lawyers. If a patient wins a court judgment, he or she can try to get a levy on property and attach the physician's earnings. Compared with this risk, buying insurance seems to be a prudent decision.

Moral: Insurance is an effect of medical liability claims, not a cause of the claims.

Myth #2: Informed Consent Forms Will Prevent All Claims

Informed consent forms may prevent some claims, but not all. Complaints may arise even with a solid and signed informed consent form. While it is always better to have a signed informed consent form than to lack one, they are not always airtight. If they do not prevent a claim from being asserted, they may render any reported claim more defensible from the doctor's standpoint.

Still, it is folly to put all the defense's 'eggs' into the informed consent 'basket.' Plaintiffs and lawyers might successfully circumvent informed consent forms and still build a case of liability. For example, no matter what information the consent form contains, many patients signing them are under stress or duress. Even with elective procedures, patients are often ill-prepared to deal with the analysis and tradeoffs in balancing a procedure's risks versus potential benefits.

Here's an example: A middle-aged patient suffered from metastatic cancer (one lung removed, spinal involvement) and had difficulty walking. His doctor suggested having a spinal rod inserted. The orthopedist ' consulted post-myelogram ' said, 'You have two choices: Have the surgery or spend the rest of your life in a wheelchair.' The patient had by this time already exhausted radiation treatment, chemotherapy and other surgical options to address his cancer. Despite the poor prognosis, the patient elected immediately to have surgery, hoping against hope that he would recover from the terminal cancer and could salvage his walking ability. Months later, after traveling 100 miles to a well-known teaching hospital and enduring agonizing pain during two months in intensive care on a ventilator with no use of his lower extremities, he wondered if he had done the right thing.

At this point, the question becomes whether the orthopedist had covered himself with the 'informed consent' he obtained from the patient. Well, not only did the referring orthopedist in our example not advise the patient of his options adequately (there might have been a co-consultation with an oncologist before the conversation with the patient), but the teaching hospital's surgeon missed a chance to explain the situation to the patient. It was questionable, given the patient's condition, whether his spine would have stabilized, even had he been cancer-free. But the doctors told him he had to decide immediately, giving the patient no chance to really deliberate on the issue.

Moral: Make informed consent forms thorough, but understand their vulnerabilities and limitations.

Myth #3: Common Courtesy Is Irrelevant

With better bedside manners, doctors could avoid entirely a significant number of claims. Many medical malpractice plaintiffs complain that a doctor or nurse was rude, arrogant, did not return phone calls or offended them. Perhaps this becomes less relevant once the patient gets a lawyer. If patients feel that they were treated nicely, however, they may never hire an attorney. Patients who like their doctors tend not to sue, even in the face of a genuine adverse outcome and lapse in standard of care. Conversely, a patient's perceived slight may be the last straw needed to push him or her toward a lawyer. A comforting bedside manner coupled with communication skills may go further than technical training in preventing claims. Patients generally do not sue doctors whom they like. Patients are less likely to consult an attorney if they like the physician and feel that he or she took the time to listen, to explain and to care.

Moral: Patients, being human, often want to give the benefit of the doubt to people they like and trust, and tend to forgive such people when they make a mistake. Being a likeable caregiver can go a long way toward reducing the likelihood of being sued.

Myth #4: 'If the Adverse Outcome Was Statistically Insignificant, I Have a Strong Defense'

Ivory Soap may be 99.44% pure, and that is an impressive percentage. In medical professional liability, though, 99% effectiveness and safety may not be good enough. In handling and managing claims, this author often hears clients insist that they have a strong legal defense because an adverse patient outcome was 'statistically insignificant.' In medication reactions or medical liability, for example, perhaps only a few dozen patients out of ten thousand have an adverse or fatal reaction. In this calculus, it is easy for physicians to rush to judgment in dismissing a plaintiff's liability argument: 'The claim is bogus and has no merit. Let's deny liability and prepare for a slam-dunk trial victory!'

Physicians and those defending them must be careful with this argument, which juries may not 'buy.' In court, a patient's appearance and sympathy factors may hold sway. If you, your child or spouse suffer an adverse outcome or have a severe accident, the fact that it is 'statistically insignificant' really doesn't matter.

Consider the following: A complication or mishap might occur in a certain situation only .1% of the time. A standard of 99.9% effectiveness sounds impressive, doesn't it? In many contexts, it is. But if 99.9% were good enough, then '

• Publishers would ship 2.5 million books with the wrong covers;
• Footwear companies would ship out 114,500 mismatched pairs of shoes each year;
• Two planes landing at Chicago O'Hare would be unsafe every day;
• Hospitals would give 12 newborns to the wrong parents daily;
• Doctors would write 20,000 incorrect drug prescriptions this year; and
• Doctors would perform 291 pacemaker operations incorrectly.

Whether fair or reasonable, juries may decide that, in managing medical risks, 99.9% is not good enough. The broader issue is that, in the realm of medical malpractice, there is conference room reality and then there is courtroom reality. In a conference room populated by many like-minded people, it is easy to brand a patient's argument as a specious, frivolous lawsuit. 'Hey, the outcome is statistically insignificant; the claim is bogus and should be denied. Glad we have that taken care of ' now let's go get some coffee!'

But put yourself in the jurors' shoes: The typical triers of fact in a medical malpractice case will not be a group of medical professionals or highly educated individuals. Let's face it, often, jury pools do not draw from the most educated or employed socio-economic strata. This often creates a system where sympathy for the underdog eclipses the ability to understand scientific and medical defenses.

Physicians and those crafting their defense should mentally put themselves in the juror's shoes, as one viewing an injured patient in the courtroom. Perhaps the plaintiff arrives in a wheelchair. Maybe she is on oxygen due to an alleged deviation from the standard of care or careless act. Maybe he is disfigured from an Operating Room fire or a medical treatment lapse. Perhaps the plaintiff died, and the estate is pursuing a wrongful death action. Plaintiff's counsel dims the lights and runs the projector, showing footage of the deceased with his family, enjoying outside activities, volunteering in the community, opening Christmas presents with his children. The plaintiff went in for a 'routine' medical procedure but is now dead, presumably due to a physician lapse. The jurors' hearts go out to the family and to the patient. Four of the jurors are reaching for the tissues, dabbing their eyes. Not a good sign!

Enter the defense attorney, to explain this away with the argument that the outcome was 'statistically insignificant.' How persuasive would you find that?

Imagine if your spouse or your child were injured. Would you be consoled by the knowledge that their injuries or their deaths were statistically insignificant? If you were permanently disabled due to an adverse outcome, would you accept it philosophically because it was a 'one-in-a-million' scenario? It may be one-in-a-million, but juries may still hammer a hospital, physician or health care provider if, during trial, evidence shows that small changes could have eliminated the one-in-a-million risk. This is not to say that health care professionals must eliminate all risk or embrace anything other than zero-defects as unacceptable outcomes. Sympathy for patients may override number-crunching that shows that the adverse outcome was rare.

Here are the morals of this point:

• Use the 'statistical insignificance' defense with caution and have realistic expectations of how it may not work.
• Tactfully educate physician clients about the pitfalls of this argument, which may appeal to financial types (but CFOs tend not to sit on juries!). Have outside legal counsel thoroughly review informed consent agreements to include statistically rare, but not unheard of, hazards and contraindications.
• Blend that defense with other strong arguments: no negligence, thorough informed consent disclosure about the statistical possibility of adverse outcomes, intervening cause of the injury, etc. Do not put all your defense 'eggs' in the basket of statistical insignificance.

After all, if a jury awards $5 million in damages against the physician, hospital or health care provider, you and your client will take little solace in the fact that such an award was ' statistically insignificant.

Kevin M. Quinley, CPCU, a member of this newsletter's Board of Editors, is Vice President for the Council of Litigation Management and author of the book, Bulletproofing Your Medical Practice (SEAK, Inc.).

The earth is flat.

Lightning never strikes twice in the same spot.

Man will never fly.

All these were once strongly held opinions, but are now exposed as modern-day fallacies. In the medical malpractice arena as well, claim-related myths abound. Many physicians embrace long-held tenets and preconceptions about claims, not all of which are accurate. Professional liability is a sensitive topic. Some of what passes for conventional wisdom, unfortunately, is a recipe for a claim disaster waiting to happen.

In adjusting medical malpractice losses, insurers, attorneys and claim professionals encounter recurring opinions on and challenges to effective claims-handling. Here are four common medical malpractice claim fallacies, and the reasons why they wilt under close scrutiny.

Myth #1: Insurance Invites Lawsuits; Going 'Bare' Prevents Lawsuits

This tenet confuses cause with effect. More often than not, when they file lawsuits, patients and attorneys do not know if the doctor has insurance or not. They assume it to be so, since most professionals carry it or are even required to have it. Perhaps only later ' in discovery ' will they learn that there is no insurance. By that point, though, the patient or lawyer has already filed a lawsuit.

Thus, being uninsured has not deterred ' and will not prevent ' the filing of claims. To an extent, the attorney or aggrieved patient may not care. They can simply pursue the doctor's personal assets: house, car, future earnings, and so forth. Meanwhile, the physician now loses one huge benefit of medical malpractice insurance: the right to have a lawyer hired to defend the case. The legal insurance provided by malpractice policies is an often overlooked benefit. Doctors can hire their own lawyers, but that can be financially draining.

The best medical malpractice attorneys may be leery of accepting a case from uninsured physicians, due to concerns over when (or if) they will get paid. When engaged by insurance companies, doubts about financial viability and payment are rarely impediments.

Practitioners could theoretically hire 'cheap' lawyers, but then they may get an anemic defense and end up facing a walloping jury verdict. In law, as in medicine, you often get what you pay for. If a physician thinks that hiring an experienced attorney is costly, let him try hiring a cheap one to defend a medical malpractice case.

If a lawyer discovers the doctor is uninsured, it is still unlikely that a patient will simply drop a claim due to lack of insurance coverage. Most doctors are high-income individuals, or at least perceived that way by the public and many lawyers. If a patient wins a court judgment, he or she can try to get a levy on property and attach the physician's earnings. Compared with this risk, buying insurance seems to be a prudent decision.

Moral: Insurance is an effect of medical liability claims, not a cause of the claims.

Myth #2: Informed Consent Forms Will Prevent All Claims

Informed consent forms may prevent some claims, but not all. Complaints may arise even with a solid and signed informed consent form. While it is always better to have a signed informed consent form than to lack one, they are not always airtight. If they do not prevent a claim from being asserted, they may render any reported claim more defensible from the doctor's standpoint.

Still, it is folly to put all the defense's 'eggs' into the informed consent 'basket.' Plaintiffs and lawyers might successfully circumvent informed consent forms and still build a case of liability. For example, no matter what information the consent form contains, many patients signing them are under stress or duress. Even with elective procedures, patients are often ill-prepared to deal with the analysis and tradeoffs in balancing a procedure's risks versus potential benefits.

Here's an example: A middle-aged patient suffered from metastatic cancer (one lung removed, spinal involvement) and had difficulty walking. His doctor suggested having a spinal rod inserted. The orthopedist ' consulted post-myelogram ' said, 'You have two choices: Have the surgery or spend the rest of your life in a wheelchair.' The patient had by this time already exhausted radiation treatment, chemotherapy and other surgical options to address his cancer. Despite the poor prognosis, the patient elected immediately to have surgery, hoping against hope that he would recover from the terminal cancer and could salvage his walking ability. Months later, after traveling 100 miles to a well-known teaching hospital and enduring agonizing pain during two months in intensive care on a ventilator with no use of his lower extremities, he wondered if he had done the right thing.

At this point, the question becomes whether the orthopedist had covered himself with the 'informed consent' he obtained from the patient. Well, not only did the referring orthopedist in our example not advise the patient of his options adequately (there might have been a co-consultation with an oncologist before the conversation with the patient), but the teaching hospital's surgeon missed a chance to explain the situation to the patient. It was questionable, given the patient's condition, whether his spine would have stabilized, even had he been cancer-free. But the doctors told him he had to decide immediately, giving the patient no chance to really deliberate on the issue.

Moral: Make informed consent forms thorough, but understand their vulnerabilities and limitations.

Myth #3: Common Courtesy Is Irrelevant

With better bedside manners, doctors could avoid entirely a significant number of claims. Many medical malpractice plaintiffs complain that a doctor or nurse was rude, arrogant, did not return phone calls or offended them. Perhaps this becomes less relevant once the patient gets a lawyer. If patients feel that they were treated nicely, however, they may never hire an attorney. Patients who like their doctors tend not to sue, even in the face of a genuine adverse outcome and lapse in standard of care. Conversely, a patient's perceived slight may be the last straw needed to push him or her toward a lawyer. A comforting bedside manner coupled with communication skills may go further than technical training in preventing claims. Patients generally do not sue doctors whom they like. Patients are less likely to consult an attorney if they like the physician and feel that he or she took the time to listen, to explain and to care.

Moral: Patients, being human, often want to give the benefit of the doubt to people they like and trust, and tend to forgive such people when they make a mistake. Being a likeable caregiver can go a long way toward reducing the likelihood of being sued.

Myth #4: 'If the Adverse Outcome Was Statistically Insignificant, I Have a Strong Defense'

Ivory Soap may be 99.44% pure, and that is an impressive percentage. In medical professional liability, though, 99% effectiveness and safety may not be good enough. In handling and managing claims, this author often hears clients insist that they have a strong legal defense because an adverse patient outcome was 'statistically insignificant.' In medication reactions or medical liability, for example, perhaps only a few dozen patients out of ten thousand have an adverse or fatal reaction. In this calculus, it is easy for physicians to rush to judgment in dismissing a plaintiff's liability argument: 'The claim is bogus and has no merit. Let's deny liability and prepare for a slam-dunk trial victory!'

Physicians and those defending them must be careful with this argument, which juries may not 'buy.' In court, a patient's appearance and sympathy factors may hold sway. If you, your child or spouse suffer an adverse outcome or have a severe accident, the fact that it is 'statistically insignificant' really doesn't matter.

Consider the following: A complication or mishap might occur in a certain situation only .1% of the time. A standard of 99.9% effectiveness sounds impressive, doesn't it? In many contexts, it is. But if 99.9% were good enough, then '

• Publishers would ship 2.5 million books with the wrong covers;
• Footwear companies would ship out 114,500 mismatched pairs of shoes each year;
• Two planes landing at Chicago O'Hare would be unsafe every day;
• Hospitals would give 12 newborns to the wrong parents daily;
• Doctors would write 20,000 incorrect drug prescriptions this year; and
• Doctors would perform 291 pacemaker operations incorrectly.

Whether fair or reasonable, juries may decide that, in managing medical risks, 99.9% is not good enough. The broader issue is that, in the realm of medical malpractice, there is conference room reality and then there is courtroom reality. In a conference room populated by many like-minded people, it is easy to brand a patient's argument as a specious, frivolous lawsuit. 'Hey, the outcome is statistically insignificant; the claim is bogus and should be denied. Glad we have that taken care of ' now let's go get some coffee!'

But put yourself in the jurors' shoes: The typical triers of fact in a medical malpractice case will not be a group of medical professionals or highly educated individuals. Let's face it, often, jury pools do not draw from the most educated or employed socio-economic strata. This often creates a system where sympathy for the underdog eclipses the ability to understand scientific and medical defenses.

Physicians and those crafting their defense should mentally put themselves in the juror's shoes, as one viewing an injured patient in the courtroom. Perhaps the plaintiff arrives in a wheelchair. Maybe she is on oxygen due to an alleged deviation from the standard of care or careless act. Maybe he is disfigured from an Operating Room fire or a medical treatment lapse. Perhaps the plaintiff died, and the estate is pursuing a wrongful death action. Plaintiff's counsel dims the lights and runs the projector, showing footage of the deceased with his family, enjoying outside activities, volunteering in the community, opening Christmas presents with his children. The plaintiff went in for a 'routine' medical procedure but is now dead, presumably due to a physician lapse. The jurors' hearts go out to the family and to the patient. Four of the jurors are reaching for the tissues, dabbing their eyes. Not a good sign!

Enter the defense attorney, to explain this away with the argument that the outcome was 'statistically insignificant.' How persuasive would you find that?

Imagine if your spouse or your child were injured. Would you be consoled by the knowledge that their injuries or their deaths were statistically insignificant? If you were permanently disabled due to an adverse outcome, would you accept it philosophically because it was a 'one-in-a-million' scenario? It may be one-in-a-million, but juries may still hammer a hospital, physician or health care provider if, during trial, evidence shows that small changes could have eliminated the one-in-a-million risk. This is not to say that health care professionals must eliminate all risk or embrace anything other than zero-defects as unacceptable outcomes. Sympathy for patients may override number-crunching that shows that the adverse outcome was rare.

Here are the morals of this point:

• Use the 'statistical insignificance' defense with caution and have realistic expectations of how it may not work.
• Tactfully educate physician clients about the pitfalls of this argument, which may appeal to financial types (but CFOs tend not to sit on juries!). Have outside legal counsel thoroughly review informed consent agreements to include statistically rare, but not unheard of, hazards and contraindications.
• Blend that defense with other strong arguments: no negligence, thorough informed consent disclosure about the statistical possibility of adverse outcomes, intervening cause of the injury, etc. Do not put all your defense 'eggs' in the basket of statistical insignificance.

After all, if a jury awards $5 million in damages against the physician, hospital or health care provider, you and your client will take little solace in the fact that such an award was ' statistically insignificant.

Kevin M. Quinley, CPCU, a member of this newsletter's Board of Editors, is Vice President for the Council of Litigation Management and author of the book, Bulletproofing Your Medical Practice (SEAK, Inc.).