“I do not hesitate to share what I endured. I recognize that there is a code of silence that must be broken when one is involved in legal action. It is imperative that we speak out to patients, legislators, and other physicians against these types of injustices. The sense of isolation can be overwhelming. I do not want anyone to go through what I have gone through, questioning myself, my skills, and my self-worth. Hopefully sharing our stories will help to give other physicians added strength. I have come to firmly believe that publicity and sharing our experiences are our best tools against legal injustice.”

Mark Lopatin is a rheumatologist and author of Rheum for Improvement: The Evolution of a Health-Care Advocate.

He shares his story and discusses his KevinMD article, “Publicity and sharing our experiences are our best tools against legal injustice.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Rate and review the show at KevinMD.com/rate. Subscribe at KevinMD.com/follow.

Today on the show we have Mark Lopatin. He is a rheumatologist, and he wrote the book Rheum for Improvement, that’s R-H-E-U-M, a little play on words there, Rheum for Improvement: The Evolution of a Health-Care Advocate. There’s an excerpt from that book on KevinMD, “Publicity and sharing our experiences are our best tools against legal injustice.” Mark, welcome to the show.

Mark Lopatin: Thank you so much for having me, Kevin.

Kevin Pho: So we’ll get into your excerpt and book in a little bit, but first off, can you share your story and journey to where you are today?

Mark Lopatin: Well, basically, I was completely oblivious to politics and advocacy until I got sued in 1998. I was actually named in two lawsuits. As a rheumatologist, I was named for failure to diagnose a brain tumor in a patient who denied the cardinal symptom of that brain tumor. Subsequently, I was named in a suit because the patient had an adverse reaction to a medicine prescribed by another doctor. I was named simply because I was the treating physician, and I actually ended up settling that suit, even though I’d done nothing wrong, just because of venue issues.

It was there that I learned, really for the first time, that the facts don’t matter in so many circumstances in medicine, most notably in malpractice lawsuits. I became outraged by that and actually started my work in political advocacy, both in organized medicine and in grassroots advocacy.

That led to another incident, which is the excerpt that I wrote about, which was when I was brought before the State Board of Medicine for an opioid case. That was in the early 2000s. That was before the opioid epidemic. If you recall, that was the pain decade, where pain was the fifth vital sign and physicians were charged with not treating pain adequately. I treated my patients’ pain adequately, but got called on the carpet by the State Board of Medicine. Little did I know that they had an underlying agenda. [Remark removed by the editor.]

Kevin Pho: So we’ll talk about that excerpt in a little bit, but first I want to ask you about what you said about being sued. When you ask doctors what their greatest fear is, a lot of physicians would say being involved in a medical liability trial is one of their greatest fears. But the reality is a lot of physicians are involved in these lawsuits sometime during their career. Now, when you were first involved with these lawsuits, tell me, how did that affect you as a physician?

Mark Lopatin: It was traumatic. It was absolutely traumatic. I tell people, getting sued for malpractice is a lot different than getting sued for a car accident, because we identify ourselves as physicians. When you meet someone at a party, one of the first questions you ask is, “What kind of work do you do?” So it’s literally part of our identity. I don’t identify myself as a driver, so being sued for a car accident doesn’t mean a lot. Getting sued as a doctor hits me at my core. Am I inadequate? It questions your self-worth.

In terms of seeing patients, it made me very suspicious. I wondered if the next patient who came along was going to sue me. I was worried about that. These were my patients, and they became adversaries instead of people that I was trying to help. Ultimately, I had to get counseling to help me get through it, especially since I was wrongfully charged. Fairness went out the window in these cases, so it really violated my sense of what’s right and what’s wrong, and it took a lot of work on my part to get through that.

Kevin Pho: Now, these lawsuits, you said, led you to a path of advocacy and speaking out on behalf of physicians. Tell me more about that.

Mark Lopatin: Well, like I said, before this happened, I couldn’t tell you the difference between a Democrat and a Republican. I had no idea what they stood for. I was not interested in politics. None of that mattered to me. When I got sued, I actually joined a group called the Politically Active Physicians Association, and I started to learn about some of the things that were going on, and some of the politicians who were supporting the need for tort reform, and others who were aligned with the trial bar. I became vociferous in that regard. I began to write articles for newspapers. I’ve written a few articles on KevinMD about various issues politically, because our profession is being taken away from us, and if we don’t open our mouths and speak out about it, we’re going to lose our profession, and the people who are going to suffer are our patients and society in general.

Kevin Pho: So give us an example of how your advocacy, your writings, and speaking to the media, give me an example of how that has moved things.

Mark Lopatin: One of the major issues, I would say, is MOC, and it wasn’t just me that did that. It’s just an overwhelming movement that came from the Pennsylvania Medical Society, talking about how the existing form of maintenance of certification, a 10-year exam, was not a measure of a physician and was really a money-making proposition for the American Board of Internal Medicine. The American Board of Internal Medicine has moved in their position. They’ve moved a little bit away from that 10-year recertification exam to different venues. They still view themselves as testing physicians and as needing to enforce the medical profession, but they have made some changes in their program that are good. It’s just not enough. So that’s one example.

The other example is in scope of practice, where in 24 states, those without a medical license, a medical degree, or medical training are allowed to practice medicine. By speaking out, again with the Pennsylvania Medical Society, that has not yet happened in Pennsylvania, and we’re trying to prevent that from happening. We think that the team that takes care of patients should be led by a physician, not by someone who has no medical training. So these are examples of how the needle has moved, but it’s very difficult to move the needle. It takes a lot of talking and a lot of people speaking about it and pushing legislators and so forth. It doesn’t come easy. It’s a heavy weight to lift.

Kevin Pho: All right, let’s transition and talk about your excerpt and book. Once again, your book is called Rheum for Improvement: The Evolution of a Health-Care Advocate. Your excerpt is “Publicity and sharing our experiences are our best tools against legal injustice.” Now, for those of you who get a chance to read your excerpt, just briefly walk my audience through it and share the story of why you decided to share it.

Mark Lopatin: Well, basically, the excerpt talks about a pivotal moment in my life. I was on trial before the State Board of Medicine. They had an underlying agenda, I found out later, and they wanted to parade me around town with my head on a stake, to show all the world that you’re not supposed to write for opioids. They hired a, quote, “expert witness” who was anything but. He had done one year of a family practice residency in the 1960s. He had no training in rheumatology. He had not done a residency, and he made his living by testifying against physicians. In this case, his report to the State Board of Medicine included at least 25 errors of fact. It’s one thing to criticize me for, “I used the wrong medicine, I used the wrong dose.” But he criticized me for not doing things that the chart clearly demonstrated that I had done.

The excerpt describes the stress of that event and meeting him for the first time, and what I did when I met him for the first time. He extended his hand to me, and I shook his hand. Afterwards, I was taken aback by what I had done, because I had been taught civility and courtesy. I realized in that instant that civility and courtesy are important, but they should not be extended to those who have no moral ethics. [Remark removed by the editor.] So I realized that there are certain paths, certain lines that you need to cross. You don’t extend civility to people like that.

I described the trauma of the case for me. Literally, when I took the stand, I was literally shaking as I testified, and I was terrified. This was my career at stake. Now, I got through it. My chart was well documented. I had not done anything wrong. I complied with the general teachings of the time regarding opioids. But I described the trauma of it.

We’re not allowed to talk about these things. When you get sued, you’re not allowed to discuss the case. It’s one of the criteria for settlements; you’re not allowed to discuss the settlement. My point is, we need to be speaking out against this. We need to speak out against the wrongs that are being put forth. You talked about physicians being sued. I ran a survey of a thousand physicians in the state of Pennsylvania after I got sued. More than 70 percent reported having been sued in their career. This is something that happens to all of us, or most of us, and nobody will talk about it. Furthermore, we need to talk about what’s going on in health care. We need to advocate and open our mouths to those who are in power, who are in a position to change things, legislators and so forth.

Kevin Pho: So these expert witnesses, colloquially we call them hired guns. Do they face any repercussions for the inaccuracies that they presented during testimony?

Mark Lopatin: No. In fact, we told the state board, my lawyer and I, that he did not meet the criteria for expert testimony in the state of Pennsylvania, based on legislation that was passed in 2004. The state board said, “This isn’t a malpractice suit. We don’t care.” They had their underlying agenda.

After the case was over, I spoke to my attorney and said, “I want to sue the state board and this expert witness.” I was told the expert witness had immunity, that I would have to go to the Supreme Court of Pennsylvania to get them to change their rulings for expert testimony, with money out of my pocket that frankly I couldn’t afford at the time. So I had to let it go. I wanted to put a sanction against his license. He subsequently retired and gave up his license, so I had no recourse against him whatsoever. The harm that he had inflicted upon me, I was just left to speak out against it however I could, which is what I did in the excerpt, and what I did in the book when I wrote about this. I have a whole chapter devoted to this case, what it meant to me, and how much it galvanized me to speak out against many of the wrongs that are occurring in medicine.

Kevin Pho: Now, for those other physicians who are undergoing medical liability trials or going through trials with their state boards, you’ve been through these experiences, unfortunately. What kind of advice can you give these other physicians through your own experiences?

Mark Lopatin: For a malpractice suit, the major thing you have to recognize as a physician is that to an attorney, this is strictly business. This has nothing to do with you as a physician. This has nothing to do with your self-worth. This has nothing to do with your qualifications. I know of one case where, while the jury was out deliberating the case, the plaintiff’s lawyer approached the defendant and asked him if he would be an expert witness for another case. He knew that the defendant was qualified to practice.

In many cases, this can be about money, it can be about getting answers, it can be due to lack of communication. Generally speaking, malpractice suits have not much to do with the self-worth of a physician. Anybody, all of us, can make mistakes, and the thing that I urge physicians to do is to separate that from their own sense of self-worth.

The other thing that I would encourage physicians to do is get counseling if you need it. Do not be ashamed to get counseling, to get help. This is a traumatic event. I likely have a component of PTSD from what I went through. I’ve never been formally diagnosed, but I’ve gotten counseling on two separate occasions. It helped me cope with the feelings of anger and the venom that was inside of me, and to be able to use that venom in a productive fashion, which I’ve fortunately been able to do.

Kevin Pho: So, like you said before, being a physician is part of your identity, and sometimes separating business from being sued, it’s such a traumatic experience for physicians, and that’s not always so easy. So are there any ways that physicians can separate themselves from this identity when they’re being sued? Is there an easy way for physicians to just see this as strictly business?

Mark Lopatin: It’s very difficult. I always make the distinction between head and heart. You have to use logic and conscious thought, mindfulness, conscious thought, to tell yourself that’s what’s going on. I make the analogy to breathing. If you don’t think about your breathing, you just breathe however you breathe by default. But if you think about it, you can control your breathing to a certain extent. You can breathe fast, you can hold your breath, and so forth, but that requires conscious control and conscious thought. The same thing has to apply here.

You need to speak with your attorney, because your attorney can be great in terms of helping you get through and realizing your self-worth. Once again, talking with other people about it can be useful. Also, finding a means to get it out there, like I’ve done in letters to the editor. I actually wrote an article on my lawsuit; actually, I wrote two articles, which were published, one in Medical Economics on my lawsuit, and one in the Journal of Medical Practice Management on my case before the state board.

So getting it out there for other people to hear, and all of a sudden you realize you’re not alone. Being sued can be a very isolating experience, and just the realization that many other people are going through this, the same as you, and they’re not saying anything about it, but they’re still experiencing the same things you are, can be very helpful to know in terms of dealing with the stress of this.

Kevin Pho: We’re talking to Mark Lopatin. He’s a rheumatologist, and he’s the author of the book Rheum for Improvement. “Rheum” is R-H-E-U-M. Rheum for Improvement: The Evolution of a Health-Care Advocate. Mark, what are some of the main messages from your book that you want your readers to come away with?

Mark Lopatin: Let’s see. There are two main messages. One is that health care should be a human interaction between a patient and their physician, rather than a business transaction between a consumer and a provider. Health care has been hijacked by those who seek to control the health care dollar, and they’ve taken the physician-patient relationship as a hostage, and they’ve actually damaged that significantly for their own gain. So recognize that this is a human experience. Take care of your patients. Focus on your patients. That’s the most important thing.

The second message is we need to be speaking out. We need to be advocating for our profession. We need to be advocating for our patients. If you go to work at eight o’clock in the morning and you see patients all day and you get done at six o’clock and you’re done for the day, you haven’t done your job. You must speak outside your office hours: Talk to legislators, write articles, join the medical societies, but speak out against the wrongs that are happening in medicine that are harming patients. Because ultimately, it all comes down to the patient. That’s why we went into this profession, and if we focus on that, everything else will take care of itself.

Kevin Pho: So you mentioned a few of these, but what are some concrete and specific ways that physicians can advocate for themselves and the profession?

Mark Lopatin: First is to become educated about the issues that are going on. Water cooler politics accomplishes nothing, but it does educate you. You need to be reading about things in medical journals, in newspapers, and so forth. Write to the newspapers when you see something. If something’s happened to you, write a letter to the editor. Talk to the health care editor of the newspaper. The health care editors of both my local papers, including The Philadelphia Inquirer, I don’t hesitate to reach out to them when something comes up.

Talk to your legislators. Get to know your legislators. Know who they are. Be on a first-name basis with them, so that when something comes up, you can call them on the phone and talk with them or set up a meeting in their office. Let them know that you can be a resource for them. It’s not just a one-way street. You can provide them with information about what’s going on, but we need to reach out to our legislators.

Finally, join your medical society. State medical societies can provide invaluable information about what’s going on in terms of the state and in terms of legislation. We’re the board of trustees for the Pennsylvania Medical Society, and we’re constantly putting stuff out about various bills that are coming out, various issues, scope of practice, maintenance of certification, prior authorization, all the issues that affect us on a day-to-day basis. That information is on the medical society website. So there are lots of places to get information, and there are lots of opportunities to speak out.

Kevin Pho: My final question: What are some of your take-home messages that you want to leave with the KevinMD audience?

Mark Lopatin: Just what I just said: You’ve got to speak out. Your profession is more than just seeing patients, and we need to be helping patients outside the exam room as well as inside the exam room, speaking out against the things that are hurting us and hurting our patients. Only then can we say that we are truly doing our job as physicians.

Kevin Pho: Mark, thank you so much for sharing your story, time, and insight, and thanks again for being on the show.

Mark Lopatin: Thank you so much for having me, Kevin.