How only lawyers can determine medical standard of care

by Michael Kirsch, MD

A medical malpractice case was recently filed against me.

I received the thick envelope from noble and altruistic Cleveland barristers about 6 weeks ago. Once again, I saw my name in the good company of many other physicians and our local hospital. I reviewed my medical records and felt comfortable with the care I had provided. In a medical malpractice case, quality of medical care is important, but the truth won’t set you free. It’s the documentation, stupid! I believe that I practice good medicine, but I know that I document obsessively. The former is important to my patients, and the latter is appreciated by my lawyer.

I had a single meeting with my attorney to review the legal preliminaries. It was clear that he had studied all of the relevant documents and was prepared. He was a senior partner at the firm and looked so much like a lawyer, that I thought he must be an actor. He donned a well tailored conservative suit and had elegant silver hair. He wore reading specs that conveyed a professorial demeanor. He was measured in his speech. Did he know any law? I hope so, but who can tell? As marketers and advertisers know, packaging is more important than the contents.

I had no clue where my standard of care may have strayed from the community standard. Only a person with a law degree can make such a determination. After all, what do we doctors know about medical quality? A physician cannot be expected to offer an authoritative opinion whether medical care is within acceptable standards as would be practiced by a reasonable and prudent physician if said physician were faced with similar clinical circumstances and knew, or should have known, that the patient, known as “Victim A”, had a condition or set of conditions that within a reasonable degree of medical probability may have resulted in an adverse outcome had the physician not instituted prudent and proper medical care and treatment in accordance with established medical custom and practice.

Making a medical standard of care determination is certainly beyond the intellectual reach of a concrete thinking gastroenterologist who spends a good portion of his time in rectums. Lawyers, however, are paid handsomely to unravel such insoluble questions. So, at the close of our meeting, I asked him straight out why he thought I was being sued.

The wizened attorney thought for a minute before responding. He leaned towards me and with focused eye contact stated, “I have no idea”. That made two of us.

In Ohio, filing a medical malpractice case against a doctor requires that a physician sign an affidavit of merit, a sworn statement, attesting that the standard of care was breached. While these affidavits are generally signed in advance of filing suit, judges will give plaintiffs some latitude and permit the case to be filed if an affidavit will soon follow. I am in this window period, when the plaintiff’s attorney is trolling around the state trying to pay off one of my colleagues for a signature. I don’t think he’ll find one, even though this service can earn a physician up to $1,000 an autograph. Maybe some of these guys should be thrown out of the profession.

How does anyone credibly defend a system that targets innocent physicians routinely, vaporizes tens of billions of dollars on defensive medicine and misses the vast majority of patients who have been the victims of true negligence?

If physicians performed according to these standards, we’d all be in handcuffs.

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower.

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  • W

    Good luck. As a manager in the advertising/marketing field, I appreciated your comment about packaging v. contents. Sad but true.

    After some experience with lawyers on the opposite side (trying to find out from a risk management attorney why I was suddenly and without warning being denied care), I lost a great deal of faith in the legal system. It seemed deliberately designed to obscure truth, distort facts with abuses of language, and ultimately screw over the person least willing to get down in the mud.

    But it was relatively easy for me to walk away and find another doctor (not that I had any problems with the first one). Those of you with hard-won careers on the line, I can’t even begin to imagine facing this as an almost routine part of your day.

  • cliff

    Can’t you counter-sue to recuperate $$$ lost on a frivolous/wrongful lawsuit?

  • Dr. Mary Johnson

    Very good post. Documentation was a nightmare for me as well in a recent extremely-critical clnical situation (the lawyers like to call them “bad baby” cases).

    The EMR system I work with (at a small rural hospital) is relatively new. It still has a lot of “bugs” to work out, and is certainly not portable (i.e. there’s no way to take it to the bedside). The template I had to use (to transfer all of the information that a referral center would need) was for a well-baby.

    The quick “point-and-click” system that the non-medical personnel who designed the system say is so “easy” was fairly useless – and frustrating.

    And/so the meat of my note was a narrative – a narrative I had ZERO time to write.

    I was in the middle of an active/heroic resuscitation – with a desperately-ill infant. So I really didn’t have time to sit down and compose a lawyer-perfect note. Moreover, I had to accept a pended (incomplete/far-less-than perfect) note in order to get something printed out for the transport team/NICU.

    And then I was stuck with amending it.

    It’s really sad when you answer a phone call and you come in to work and you do your job (which in this instance included doing everything I knew how to do in order to save a life – and doing it in textbook fashion) . . . what’s more, you’ve done it in the middle-of-nowhere with limited resources . . . but instead of being able to pat yourself on the back for a job very well done – for an effort that gave the patient the ONLY chance he/she was going to have – you have to worry about how a lawyer might one day pick apart your note – trying to make you look incompetent or stupid or dishonest.

    Was it more important for me to be at the bedside of a critically-ill baby . . . or at the computer writing a perfect note for the ambulance-chasers who can see so clearly in retrospect – and who can almost always buy someone who will say they could have done it better?

    But according to Obama & company (Obama being the lawyer who thinks Pediatricians do tonsilectomies for the money), tort reform isn’t important as a component of healthcare reform.

  • Sharon M O’Connor, RN

    Let me share my experience. During oral surgery, the incision was contaminated by klebsiella pneumoniae. The surgeon first denied anything was wrong, treated me in a condescending manner and failed to take responsibility. One night when he called me to talk about the situation (I was very ill with the resulting sinus infection) I didn’t answer so he CAME to my house! The only reason I did not sue him was because of the toll it would take on me. I lost 7 months of work, had surgery to allow healing and came close to dying. The reason I would have sued is because of the way he communicated with me. I think the answer lies in the doctor/patient relationship.

  • Sarahw

    I have sympathy for this kind of complaint, but it’s based on ignorance of procedure.

    The attorney would be committing malpractice if he did not fail to establish a potential claim against someone who provided care to the patient. Your relationship to the event that harmed the patient is something to be determined after examining the records: after obtaining records vi duces tecum. To have excused you from liability before determining it, with no basis than your own firm belief of the adequacy of your care would be malpractice.

  • Surgery Resident


    I’m not trying to argue your case, but a wound infection is a known complication to a surgery and your mouth is full of bacteria. That would be a tough suit to win.

    From my perspective, residents are taught to document more so for the lawyers than the patients. When I get a consult, I write down the specific time I was called so that no one can accuse me of being slow. When I see a patient that I am 99% sure has nothing wrong with them (i.e. a 20 yo male worried they have a heart attack), I order the tests so that I don’t have an angry patient who could sue me down the line.

    We all hear about these horrific cases of malpractice, but when you are in the trenches (like taking care of 6 trauma patients at a time), it is easy to see how something could be missed, or a patient could have a delay in diagnosis. At our facility, we are understaffed with nurses which makes me more inefficient. If I miss something, because I was too busy doing something else that should be done by a nurse, who is responsible for that?

    Also, how many of these lawyers have dealt with screaming family members at midnight? I of course don’t think we should tolerate malpractice, but it is easy for me to see how things can get missed in an over-worked environment.

  • gcmd

    @ Sharon

    just to be clear, was it a good thing or a bad thing that the physician came to your house? Most people complain that doctors won’t go the extra mile, do house calls, follow up, etc. That being said, maybe you didn’t appreciate being hassled?

  • Sharon M O’Connor, RN

    It was a bad thing that he came to my house. It was not to treat me it was to tell me how wonderful his care was. The germs cultured belong in the lower GI tract. It was very clear to me, the infectious disease doc at Brigham and Women’s and the two surgeons who bailed me out that it should not and would not have happened with proper infection control procedures in place. By the way, he offered to pay me to keep it out of court.

  • Student

    Classic example of a nurse acting like a doctor.

  • W

    Ms. O’Connor’s case sounds very similar to something my mother went through about six years ago. Following oral surgery, she developed a severe throat infection (misdiagnosed as thrush) that made it very difficult for her to swallow. She was not getting enough fluids, which led to a bowel impaction that nearly killed her. It was a nurse who manually removed the impaction in the ER — so don’t go dissing nurses.

    No, we didn’t sue anybody.

  • The Happy Hospitalist

    Since when was being rude considered negligence? The fact we even have discussions about whether to sue or not based on how nice someone is or isn’t you says volumes about how broken the med-mal system is.

    If you were harmed by negligence, you should get compensated. If you weren’t you shouldn’t. It should not matter whether Doctor Smith was a ray of sunshine or a cloud of despair.

  • cliff

    Rudeness as a factor is just a fact of life. If you make a mistake, own up to it, are a decent sort of human being, then you are more apt to be forgiven.

  • Sharon M O’Connor, RN

    Thanks for your comments. It’s true. If you’ve been harmed you should be compensated. I’m aware of many who have not been because they don’t want to be part of the legal system.

    The point I was trying to make in my original comment was that communication is an important piece in protecting yourself from a lawsuit. It should not be this way, but it is. How different would I have felt if someone said “Sharon, I’m so sorry this happened. Let’s work together to get you better.” instead of denying that anything was wrong.

    I’ve seen patients with abrasive personalities receive inferior care. It’s just human nature. The truth is, I’ve seen a lot that has gone very right in our health care system and on occasion, things that went very wrong. I’ve done my best to learn from these events.

    Communication is so important that the Airline industry requires that flight crews have recurrent training in Crew Resource Management. It is my understanding that this course exists because in investigating plane crashes it was determined that often times the First Officer knew something was wrong but the Captain turned a deaf ear.
    This represents the humble opinion of a nurse who now uses words to encourage health and wellness

  • joe

    Just for the record Sharon M O’Conner RN, “Klebsiella pneumoniae” is part of the normal flora in the mouth.

  • Primary Care Internist

    Today I had my 60-yr-old patient, a nursing home resident with nephrotic syndrome and diabetes, refuse the H1N1 vaccine because 3 different nurses told her it was unsafe.
    Luckily I was able to convince her otherwise.

    Nurses are generally very good at what they do, but should stop playing doctor.

  • Sarahw

    H H, rudeness is a “tipping factor”, not what “causes” a suit – it does tend to cause treatment decisions, actions or inactions, to be viewed in a less favorable light, and not irrationally. A physician who is dismissive or arrogant is a physician who doesn’t listen, who is above society’s rules, perhaps “above” other rules as well – safety rules, protocols – a physician indifferent to his patient’s well-being is one who may be careless with a patient’s well-being.

    Rudeness – it’s like a little clue.

  • Anonymous

    The most critical question has been overlooked:

    “Can’t you counter-sue to recuperate $$$ lost on a frivolous/wrongful lawsuit?”

    Cliff, why don’t you research that excellent question. Then ask yourself, why ARE such damage award caps and statutory exemptions in place to protect this particular (the legal) profession?

  • Sarahw

    Frivolous litigation exposes filing lawyers/plaintiffs to sanctions and fines and compensation to the person or entitiy filed against.

    Some physicians have a distorted or less than fully informed idea of what a frivolous lawsuit is. The physicians test is occasionally “a lawsuit where the plaintiff prevails against me but I disagree with the verdict” or more commonly “a lawsuit that loses”.

    Complicated issues of liability which require resort to the courts do not constitute a frivolous suit even when the plaintiff doesn’t prevail. A Frivolous suit is one where the plaintiff CANNOT prevail and the plaintiff or plaintiff’s counsel :knows ahead of time: that this is the case, or for which an ordinary investigation of the facts would have revealed it to be a futile or improper suit. For example, a claim of a broken back when there is no broken back…
    or manifestly impossible, such as “the doctor implanted the souls of chipmunks in my liver”, or for which there is no basis at law for recovery in any case, or for bringing suit in the first place. (I.e. not a lawsuit with disputed facts, but one in which the facts uncontested could still never result in a verdict in favor of the plaintiff.)

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