The Case of a Doctor Giving the Correct Medical Advice and Still Getting Sued

Medscape recently had an article on a case affecting a Connecticut physician that was practicing the standard of care, but still got sued.

The case involved woman who had a strong family history of breast cancer. In 2005, the woman had an elective partial hysterectomy for uterine fibroids, which is benign. Whether or not to remove the ovaries too, during the hysterectomy was also considered. The benefit to removing the ovaries is eliminating the risk for ovarian cancer. The negative effects of removal are, if the woman is pre-menopausal, removing the ovaries will mean she will be menopausal post surgery and assume the risks of that condition.

During the pre-operative consult, the physician did note the patient's family history of breast cancer, which suggests a higher risk of ovarian cancer as well. However, the physician did not order a pre-operative genetic evaluation searching for the BRCA gene. This gene, if present, would indicate the patient had a much higher chance of growing ovarian or breast cancer later on.

The hysterectomy was a success, and the ovaries weren't removed. Yet, one year later, the patient was diagnosed with late stage, terminal ovarian cancer that had metastasized to the abdomen. The patient sued the doctor for medical malpractice.

As it turned out, the BRCA gene was negative when the patient was ultimately tested. If the test had been done pre-operatively, most physicians would have proposed that the ovaries not be removed. This fact was not admitted in court. The patient simply alleged that given her family history, the ovaries should have been removed, regardless of the fact that it was not accepted medical practice.

The jury found in favor of the plaintiff and awarded her $4 million dollars. The physician lost on lost on appeal to the Connecticut Supreme Court.  His malpractice insurance only covered $1 million dollars so the doctor's financial assets were attached to cover the judgment.

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Medical Malpractice Settlements: How They Work

How do medical malpractice settlements work?  It depends on the laws of the state in which the alleged malpractice took place and the facts of the actual case. Most doctors are willing to settle to avoid uncertainty and the risk of a trial.

Negotiations for a settlement usually occur between the plaintiff and their lawyer, the defendant and their lawyer, and also the insurance company's lawyers. It may be very complex and lengthy or as easy as cutting a check. Economic damages are easy to quantify, yet suffering and pain is usually not easy to negotiate.

The physician can take her or his risks and go to trial. An attorney can help a physician get a clearer idea of the way in which a jury might see the facts of the case. Additionally, the physician's insurance company may have a mandatory maximum settlement payment after which they'll take their chances in court so going to trial may be the only option. A physician can be dropped entirely from coverage for any settlement a physician consents to or can see in an increase in malpractice premiums.

Settlements frequently contain nondisclosure agreements in which both parties agree to keep the terms confidential. This can benefit the doctor by protecting her or his reputation, however it doesn't reveal to possible patients whether a doctor was involved in a malpractice suit. There needs to be a way to discuss problems that lead to alleged medical errors without damaging capability to practice medicine or a doctor's standing.  Transparency is necessary to address patient safety issues and review medical errors to prevent them in the future.

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Did They Deserve to Get Sued? How Malpractice Suits Change Doctors

Patients can, and should, make use of the capability to bring a lawsuit against a physician when the situation requires it. What's astonishing is how frequently these lawsuits are a complete surprise to the doctor.

Medscape’s recent Internal Medicine Malpractice Report noted 74% of physicians who are named in a medical malpractice lawsuit say they were blind-sided by the notification.  Only 24% thought a suit might be coming and only 1% said they were certain a patient would sue.

The surprise may come because specialized physicians may only see the patient for a short period of time and have very little interaction with them aside from a single evaluation before the patient returns to a primary care physician. Thus, they might have no idea how the patient is doing. Some patients go directly to a suit without communicating with the doctor first. In other instances, the doctor may just miss the signals of an impending lawsuit.  In other cases, the patient may simply go directly to a lawsuit without communicating with the physician at all.

Does a malpractice lawsuit change a doctor? Even if the suit is dismissed, the process can be quite stressful and can take years to be resolved. Most physicians continue to see patients during the process. According to the Medscape study, about 30% of doctors said after a suit was filed against them, they stopped trusting their patients. It's understandable that a natural response to getting sued is practicing more defensive medicine.

Legal action must remain an option, however it ought to be the final recourse when nothing else has brought a remedy that is reasonable. Physicians need to trust their patients just as patients need to trust their doctors.

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Standard of Care is no Protection Against Malpractice Lawsuits

The medical standard of care is broadly accepted as determined by printed, evidence-based and expert-opinion established clinical practice guidelines. The issue is there are thousands of published guidelines, some narrowly defined for specific diseases, while others are much more extensive in range. Examples include the "Choosing Wisely" initiative made to reduce unnecessary tests and worthless treatments; others including quality indicators issued by the CMS, are meant to guide practices to better outcomes by regulating insurance payments.

The definition of medical malpractice is "professional negligence by act or omission by a doctor in which the treatment provided drops below the recognized standard of practice..". Many doctors believe that if their treatment options are supported by this "standard of care", that they're protected against malpractice lawsuits. After all, if a doctor is following the latest clinical practice guidelines, how can he/she fall below the standard of practice?

Guidelines in many cases are written for text-book examples, so, without completely assessing a patient, if this guideline is followed by a doctor, they may be guilty of negligence. A guideline normally can't be admitted as evidence in a malpractice lawsuit unless expert witnesses agree that it applies to a specific case.

Before offering guidelines as evidence in a litigation, intent and correctness of individual guidelines have to be considered. Some guidelines are meant to guide insurance payments, not patient care - like the CMS's "never events". Others are based on opinion or consensus instead of real clinical evidence. Some are obsolete before they are even printed because of rapid progress in the medical field. Still others might be tainted by manufacturing company or pharmaceutical interests.

The wisest course of action seems to be for doctors to treat guidelines as general outlines of care likely to change rather than fail safe statements of the standard of care.

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Class Action Lawsuit Hits Michigan Professional Health Program

The Health Professional Recovery Program (HPRP) is a Michigan organization established to give health professionals a discreet, non-disciplinary avenue to handle substance abuse disorders and mental health problems. A lawsuit was recently filed in federal Court by three mid-level providers claiming damages against this organization alleging constitutional violations, financial conflicts, lack of oversight, and due process. The HPRP is designed to track treatment of health professionals referred to them and is administered by a private contractor. The plaintiffs assert that the administrators of the program are overruling treatment decisions by doctors and coercing people into selected treatment facilities that are additionally charged with supplying the first evaluation of the need for treatment. These facilities are costly and usually not covered by insurance because these programs are deemed not medically necessary.

Several other programs designed to assist in the treatment of health professionals with mental health or substance abuse problems have also come under fire for coercion and monetary double dealing. A concerning pattern seems to have emerged in which these agencies that were initially using  volunteer boards directed at helping doctors return to practice safely now contain doctors who are closely tied to treatment facilities or drug testing firms. A chain of recent posts on SERMO, the world's largest physician-only social network, got a great deal of attention. It's clear that there have been a lot of abuses and also a lack of due process for participants in these sorts of situations. Physicians can also be subject to polygraph tests, a practice most Americans would never accept. The term "disruptive physician" is an easy method to target those who speak out against the system.

Are you aware of a colleague that has self-reported or has been reported for substance or mental health issues? Maybe you've experienced a period of mental health crisis in your own life. How did you handle reporting demands? What rightsshould physicians have?