The fear of malpractice will always be in the back of my mind

“I wouldn’t hesitate to sue you.”

I’m sorry, what?

That is what I heard from the mother of one of my patients. I was evaluating a high school athlete who had recurrent stingers (nerve injury that affects an upper limb, usually resolves with time) and a possible episode of transient quadriparesis (affecting all limbs this time). I wasn’t on the sidelines for these injuries, so I had to go on the reports given to me by the athlete and the school’s athletic trainer.

However, with that information, I did not want to clear this player to return to football until I could be certain he didn’t have any cervical stenosis or any other abnormality that might put him at risk for permanent damage if he suffered another neck injury. I told the athlete and his mother that I needed to get an MRI of his cervical spine (neck) in order to determine this. The athlete was understandably upset with my decision, but his mother supported my decision to proceed with caution. She explained to me that if her son played again, sustained another injury, and something “bad” happened, she would be more than happy to take legal action against me. Fantastic.

First of all, I can’t say that I would blame her for being angry (at the very least) if I screwed up. But to tell me in my office, to my face, that she’s already thinking about suing me? I found that ridiculous. I must be in the minority, however.

If you Google “how to sue a doctor,” an abundance of information follows. There’s an “eHow” on the subject, and even CNN offers an opinion.

I’m sure many can offer some anecdote about how a physician did this or that wrong, and I agree that there are some bad apples out there. That’s not the point of this post. The point is, way too many people are looking, just waiting, for something to happen to they can “get theirs.” It’s disappointing, and quite frankly, very scary. I didn’t go through a lifetime of education and training to doubt everything I do for fear of a law suit. I’m lucky; my specialty is non-surgical and rarely deals with critical health issues. But I’m hardly in the clear.

A 2011 study in the New England Journal of Medicine estimated that by the age of 65, “75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties.” So I have a 75% chance, give or take, that I’ll be named in at least one claim during my career. Of course, not all of these claims go to court or end up with the plaintiff being awarded, but you can see how frequently patients are quick to take action if they think they’ve been wronged.

I’ll continue to do what I’ve been trained to do – practice good, evidence-based medicine, communicate well with my patients, and document the you-know-what out of everything. But at the end of the day, the fear of a malpractice claim, valid or not, will always be in the back of my mind.

Mandy Huggins is a sports medicine physician who blogs on her self-titled site, Dr. Mandy Huggins.

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  • Anonymous

    I have canceled 2 cases on the way to the operating room because of comments such as this “oh I’m not worried doc. I’ll just sue you if something goes wrong. Ha, ha.”

  • Anonymous

    Mary, a recent report showed that 15,000 Medicare beneficiaries die every month due to medical errors. That would make medical errors the third leading cause of death. Given the number of physicians in practice in the us, that would mean that each doctor kills a patient due to error on average once every four years. So, if you only get sued once, you’re getting off pretty easy. The fact is, there aren’t a “few” bad apples. And, your recommendations did not follow the published consensus standard of care– which would have been a full spine ct or xray.

    • Gil Holmes

      15,000 Medicare beneficiaries die every month from medical errors. And that’s only Medicare benficiaries. 43 million people have Medicare. There are 320million people in the country so roughly 5 people for every medicare person. So if non-Medicare people suffer incompetence at a similar rate than that is 90,000 people we’re killing every month. That is 1,080,000/year. Only 2.5million people die each year in the US.
      Oh my!! We’re killing 40%. We should all be hung for the safety of the country. Oh wait, the stat is ludicrus on its face. Moving on…
      In other words, just because a typo occured during a hospitalization and the person died during the hospitalization does not mean the typo killed the person.

      • Anonymous

        Medicare beneficiaries being either old or disabled have a larger exposure to the medical profession than the general population.  Guess you failed statistics. 

        Denial is a pretty strong emotion. Sorry you are feeling it.  Wish the error rate were better. My mom would be alive if it were.  And it wasn’t just a typo.

        • Gil Holmes

          Wel the famous IOM report from a decade(1998?) or so ago gave a number of 100,000. That study is cited all the time in the lay media and has been panned by anyone who ever looked it at as woefully inacurrate in its defintions of an error.
          Somehow the number of deaths has increased 80% in a smaller population despite all the safety measures put into the place in the interim?  Somthing just doesn’t add up.

          And of course my math above isn’t perfect. It was just emphasizing that the number of deaths in the country from alledged errors would be much greater  than the 180,000 Medicare deaths. Not 1.1  million but but significantly north of 180K. So once again, more than a 80% increase.

          You did hit the nail on the head though. Old and debilitated people who are sick enough to be in the hospital do die at a greater rate than young and healthy people not in the hospital.

          Do errors occur? Yes. Do patients sometimes die as a result of  thesee errors? Yes. And I promise you  the physicians and nurses and other staff worry/cry about and fear this.

          I am sorry your Mom passed and  I am sorry if a preventable error was part of the reason.  Getting stats that were even within the realm of conceivability would make it easier to try to reduce errors.

    • http://EasyOpinions.blogspot.com/ Andrew_M_Garland

      karen3,

      It is hard for me to believe that “15,000 Medicare beneficiaries die every month due to medical errors”. That would be 180,000 per year from errors. Could you cite the report that you are referring to?

      • Anonymous

        Department of Health and Human Services
        OFFICE OF 
        INSPECTOR GENERAL 
        ADVERSE EVENTS IN HOSPITALS:
        NATIONAL INCIDENCE AMONG 
        MEDICARE BENEFICIARIES,
        Page ii.

        If you look at the methodology, they used physician reviewers to determine what was an error and an adverse event and the sample size was good.  They note that the result tracks with previous sampling.  
        http. oig. hhs. gov/oie/ reports/ oei-06-09-00090. pdf

    • http://EasyOpinions.blogspot.com/ Andrew_M_Garland

      Karen3,

      I looked at the link you gave ( oig.hhs.gov/oie/reports/oei-06-09-00090.pdf ), and it confirms your statement. The report says that 0.6% of patients experienced a “never event”, a serious error which should never happen. Another 1.0% of patients acquired a serious complication from their treatment. 1.6% of approx 1 million hospitalizations gives the 15,000 figure in one month.

      The government may be pushing this idea of hospital incompetence to support withholding payments from hospitals. The theory is that hospitals and doctors should not be paid for their mistakes. In fact, the government may wish to reduce costs by any means, and patients will not benefit.

      Dr. Richard N. Fogoros at the Covert Rationing Blog
      The Real Utility of Never Events
      === ===
      DrRich does not need to comment any further on the unfairness of insisting that doctors prevent every single instance of conditions that are often not particularly preventable; or on the fact that insurance companies quickly followed Medicare’s lead and now also refuse to pay for these “never events;” or that hungry attorneys have voraciously begun suing doctors and hospitals for unavoidable complications because those complications have been federally designated as avoidable; or even the fact that, having so deftly expanded the horizons of what can be considered a “never event,” the feds have cleared the path for defining virtually any medical condition they choose as a “never event.”

      The “never events” initiative – just as the Feds insist to us – is aimed at changing physicians’ behavior. But quite predictably, that behavioral change will not be in the arena of quality improvement (since no amount of quality improvement can stop “never events” that are inevitable). Rather, the behavioral change will be in the arena of risk avoidance.

      While it is unlikely that doctors will ever refuse to care for high-risk patients who are experiencing genuine medical emergencies, it is quite likely they will stop recommending elective medical therapy for high-risk patients. Patients who seem particularly prone to infection, bed sores, falls, blood sugar abnormalities, blood clots, delirium, or who seem likely to need intravenous antibiotics (which predispose to C. difficile) will be particularly targeted. Roughly speaking, these patients will include diabetics, the elderly, anyone with a clotting abnormality or a history of blood clots, the obese, people with immune disorders, and the chronically ill. Physicians know by experience and instinct the sorts of patients to whom they ought to avoid offering elective medical services.
      === ===

  • http://profile.yahoo.com/E7NDF3AABQJOPIS2O7AWKU5YLE Kathryn

    I wasn’t there, so I may have missed something in the translation, but I think there is another explanation for the comment described in the posting and the comment below.  A patient is on their way to surgery, or a mother is coping with a potential neurological injury to her child, or alternatively, an injury that could end that child’s sport “career.”   Add to that the fact that we often marginalize our patients’ emotional responses to these significant and potentially life-changing situations.

    If, before these comments were made, you asked either the surgery patient or the athlete’s mother what they were feeling, they would undoubtedly say, 1) fear/anxiety and 2) powerlessness.  Perhaps we should respond to such comments by taking a moment to recognize those things.  “Wow.  That tells me that we many need to feel about how to make you feel like you have more control in this situation.”  Or “that tells me that you may be worried about something we haven’t talked about.”  And so on.

    I know that you probably can’t have that conversation on the way to the OR, but I would ask that we consider such things instead of assuming that these patients really have their lawyer on speed dial.  They may just not know any other way to assert their position.  After all, our society does a really horrible job at preparing people for civilized management of any situation involving conflict or disappointment.

  • Anonymous

    In short, she has a much more rational basis, statistics wise, to think you are going to screw up and hurt her kid than you have to be afraid of being sued.

  • http://www.facebook.com/people/Jackie-Swenson/100000046998781 Jackie Swenson

    I wouldn’t sue my neurosurgeon who had labored 23 hours to resect a mostly calcified huge tumor in the center of my brain.  I wouldn’t sue my general surgeon who had talked me into getting a lumpectomy - only had to reoperate 4 years later when the ‘clean margin’ metastasized to the lymphnodes.  I wouldn’t sue the young doctor who had to delay my prophylactic hysterectomy/oophorectomy because a certain apparatus was ‘recalled’. 

    But I do feel like (and had threatened a couple of times out of desperation) suing my primary doctors who had misdiagnosed and/or delayed the referrals.  Why had all of them thought I was a hypochondriac was beyond me!  Some of the numbers on my blood work were ‘off the chart’; I was complaining about weight loss and fatigue.  I was having huge headaches… 

    A college friend just e-mailed about the funeral she attended Saturday.  Why should any woman die of cervical cancer in the 21st Century is beyond me! 

  • http://pulse.yahoo.com/_2LRZNHDZS6DU45WQ567LPQ7CMI ninguem

    A patient who made a remark like that to me, would be a former patient.

    Clearance for sports? With a remark like that? I would not clear, and invite them to find another doc to clear.

    • Terry M

      Absolutely agree.

      A verbal threat like that is a deal breaker.

  • http://EasyOpinions.blogspot.com/ Andrew_M_Garland

    The Health Care Crisis and Why it Was Inevitablevia BigGovernment
    12/30/10 – blogcritics.org by John Bambenek
    === ===
    [edited excerpt] 
    Limiting the Choice of Doctors

    Before a doctor sees his first patient, he needs liability insurance. The premium he is charged will be identical to other providers with similar practices no matter what training, experience, qualifications or differences exist between them. In Illinois, the premium for an OB-GYN is $240,000. In surrounding states it is about one-fourth as much, which is why Illinois has a health care crisis. Providers are fleeing the state.

    The terms and price of this insurance are non-negotiable and designed to do one thing, prevent and win lawsuits. The terms are most notorious for OB-GYN’s. For instance, a woman who has had 2 children without complications, having a third low-risk pregnancy, goes through the same regimen of care as a first pregnancy.

    Starting in the second trimester, there are bi-weekly checkups, then weekly. Each time, you pee on a stick, are weighed, have an ultrasound, some blood tests, and are asked if you have any questions.

    With my first child, after a few of these appointments, I wondered what was the point? We didn’t have questions. In, out, 15 minutes, for a $50 copay. You may have no complications or questions, with absolutely no reason for these visits, but you and your provider are required to do all of this, regardless of medical need, or you can’t continue as a patient.

    The patient pays for this decision made not by your doctor, but by some lawyers at a liability insurance company. The United States has the highest C-section rate in the developed world because liability insurance companies insist that if anything is “abnormal” a C-section must be performed to limit liability.
    === ===

  • karen3

    http://oig.hhs.gov/oei/reports/oei-06-09-00090.pdf
    see page ii, and by the way is was physician reviewers who made the call on whether the error caused a death.

  • Gil Holmes

    If one’s company wants to pay out less money and it has decided that not paying for ‘errors’ is a good way to pay out less money, then it is amazing how many ‘errors’ one can find.

    Old debilitated people who fall on a near daily basis at home do not magically become more spry and light of foot when they are ill and in the unfamilar surroundings of a hospital. Yet Medicare would have you believe that any fall in the hospital is a never event. If a death were to occur in part do to injuries sustained in that fall(that could have happened yesterday at home and been no ones fault) then that egregious error killed that poor person.

    Does this mean that fall prevention should be ignored? Of course not. It just means that fall=error is not a tautology.

  • http://twitter.com/DoctorPullen Edward Pullen

    This is why the primary care crisis is going to escalate without serious tort reform.  My generation is going to retire early to avoid this unnecessary risk. 

    • Payne Hertz

      Tort “reform” is a cynical, misanthropic scam designed to rob the millions of Americans who have been killed or injured by medical negligence of their constitutional right to seek redress in the courts. Doctors who put their desire to be immune to the consequences of their negligence over the moral and legal right of their victims to seek compensation for their suffering and loss would do well to retire.

      • http://www.facebook.com/people/Bill-Baskin/100000145501234 Bill Baskin

        It is only a right because it has been granted by the law of man. Which means with the swipe of a pen it can be taken away. Suffering and loss are granted by the law of nature and fall upon us all. The only thing that the legal process promotes as it relates to suffering and loss is that it drags it out, it doesn’t allow us to grieve properly and forces people who would otherwise move on with their lives to define themselves by their pain.

        • Payne Hertz

          The privilege granted to incompetent and corrupt doctors to continue practicing medicine to the detriment of the American public can be taken way with the swipe of a pen as well. Pity it isn’t.

          People who are injured or killed by malpractice  are not the victims of nature, they are the victims of negligent doctors, and are entitled to receive compensation same as any other tort victim. The only thing prolonging patients’ suffering is the stonewalling of doctors and insurance companies who refuse to accept responsibility for the injuries they cause, and fight to deny patients the protection of the law. How are malpractice victims who are crippled for life and wrought with horrific chronic pain supposed to “move on with their lives” when they have no money to support themselves or afford the overpriced medical “care” they need?

          The idea that people who are wronged are entitled to redress is an ancient one in every culture on this planet. Read the Bible, the Upanishads, the Code of Hammurabi or any other moral, legal or religious code.  How they go about getting that redress is different in every culture. In some, a man is expected as a matter of honor to take vengeance against anyone who harms his family. Thank God you are not living under that system and the worst you have to deal with is a once in a career risk of being sued.

          • http://www.kevinmd.com kevinmd

            “People who are injured or killed by malpractice are not the victims of nature, they are the victims of negligent doctors.”

            Data suggests otherwise:

            “We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians.”
            http://www.nejm.org/doi/full/10.1056/NEJMp068100

            Thanks,
            Kevin

          • Payne Hertz

            Please reread what I wrote: “People who are injured or killed by malpractice  are not the victims of nature, they are the victims of negligent doctors…” Malpractice by definition involves negligence on the part of doctors, hospitals etc. Not all medical errors constitute “malpractice.”

            The passage you quote is not from the IOM report, but an article by Hillary Clinton and Barrack Obama, two of the most obsequious corporate hacks in recent American political history. With respect I don’t find anything they say to be in any way credible barring confirmation from honest sources.

            Looking through the IOM report I see no estimate of the number of medical errors that are due to doctor negligence, so not sure where they get that “90 percent” figure. Instead, the stated philosophy of the report was to avoid assigning blame for medical errors but to instead focus on systemic solutions. Their analysis of why medical errors occur tended to focus more on why errors occur in general rather than why they occur in medicine specifically. The full report can be read here:

            http://www.nap.edu/catalog.php?record_id=9728#toc

  • http://www.facebook.com/profile.php?id=536906816 Kim McAllister

    I can’t imagine continuing to care for a patient after a comment like this. If this is a patient you have had in your practice for a while, perhaps a discussion with the mother would be in order, to find out where this comment is “coming from.” Otherwise, it seems very much like a threat.

  • Anonymous

    @karen3:disqus : Yes, I agree that physicians can and should do more to form, embrace, and practice a culture where patient safety is a top priority, and I also agree that there are unfortunately some doctors out there who hurt patients because of substandard care and that not enough is done to remediate these doctors let alone keep them from hurting other patients.  However, I disagree with your implication that negligence among doctors is widespread (“there aren’t a ‘few’ bad apples”).  I think most physicians really are trying to do their best for their patients.  We can and should do better.  But, threatening doctors as the patient in this blog post did doesn’t help a damn thing.  It doesn’t help improve her son’s care and only serves to further drive a wedge between physician and patient.

  • Anonymous

    I read the website article you referenced.  There are some glaring inaccuracies, while some of the information you give is true. The most glaring is that this article states Ted Kennedy is responsible for HMOs.  He might have been had he not been at odds with NIxon about some of the issues in them and perhaps they would have worked - some how.   But the truth (and this is on tape), is that Nixon was the one who decided HMOs were a good way to go because he found out that Kaiser was making profit from this model.  Yes, this was good.  Profits were the most important issue, not patients.  Go check the history, you might have to go to some industrial strength libraries to read it or check the film SICKO out.  Heaven forbid.  You can fast forward to just the Nixon tapes.  While I don’t agree with everything in the film – or necessarily that the pictures of Nixon were of when he was actually recording this - it is from the tapes and they are real. 

    What we agree upon is that we have screwed up, unsustainable health care.   

    • http://EasyOpinions.blogspot.com/ Andrew_M_Garland

      To Dorothygreen,

      09/17/10 – Kaiser Health News says:
      == ==
      1973: Under pressure from doctors and other groups, the Nixon administration backs away from its proposal to expand HMO services, but Kennedy moves ahead on the issue. He sponsors the HMO Act of 1973, which is revised several times before it is eventually signed into law Dec. 29, 1973. The bill authorizes the spending of $375 million over five years to evaluate HMOs and requires employers with more than 25 employees to provide them with the option of a federally certified HMO where available. It also prevents states from restricting doctors who want to join HMOs.
      == ==

      Sicko is propaganda produced by Michael Moore “for a profit”. It is laughably incorrect.

      == ==
      Sicko showed the Hermanos Ameijeiras hospital in October 2007. It was built in 1982 and newly renovated. This was prsented as evidence of the high-quality of healthcare available to all Cubans.

      But according to the cable, Cubans may only access this hospital by offering bribes or using contacts inside the hospital administration. “Cubans are very resentful that the best hospital in Havana is off-limits to them.”
      == ==

      Possibly you have other inaccuracies you wish to discuss, but please give a link to the information supporting your point.

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