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Emergency Medicine News:
doi: 10.1097/01.EEM.0000340950.69012.8d
You've Been Served

Coming Out of the Malpractice Closet

Hossfeld, George MD

Free Access

The price paid was insidious. For the five years from the first subpoena until the trial ended, my family and I faced escalating uncertainty, disbelief, anger, and depression. I was unable to find colleagues with defendant trial experience or a litigation support group, and I grew progressively tense as the months ticked by. Without the devoted solace of my wife, an emergency nurse, I hate to think about the possibilities. No, not that, but pretty bad all the same.

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I'd had my name, along with many others, on a few complaints, but they had all gone away without money changing hands or any action on my part. That had transpired long before any trial was scheduled. This was different. As every stage in the process was reached and passed, my confidence that this case would also vanish waned.

I think of myself as a quietly confident 30-year emergency medicine veteran, and I pride myself on staying calm under fire. Yet I found that more and more of my consciousness was occupied by the dreaded case. In the last month, I found myself considering the possibility of a guilty verdict and what life might look like if that happened. I confess even to having considered the feasibility of fleeing the country with some retirement money if I lost everything. When the verdict came in for me, I was tearful, spiritually defeated, and emotionally spent, even though I “won.”

My crime that led to this sentence? I cared for an elderly, critically ill patient the same way any good emergency physician would under the circumstances. Sadly, the patient died, and the family, fueled by a little bit of knowledge and a lot of unrealistic expectations, demanded compensation for that loss.

Two years later, it still hurts. Who do I talk to about compensation for stress, time, lost wages, and emotional wounds? One of the cruelest consequences is a loss, or at least a diminished, sense of pleasure in practicing medicine. I plan to retire as soon as finances allow, no later. Bitterness has slowly morphed to a desire to make lemonade of lemons. If you, like me, are as mad as hell and don't want to take it anymore, together we can do something about it.

One surgeon wrote to me that he too had been through a suit recently. “After my lawsuit, I have tried to do my part. A sweet lady in our church asked, ‘Have you ever been sued?’ I truthfully answered that every doctor she sees professionally has been sued (I know them all), including all the ones who go to our church. My opinion is that we physicians need to come forward and acknowledge to our peers that we have been victimized by the system.”

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I think this physician has put his finger on it. The single most important action all of us can do to bring about change is to come out of the closet, admit that we have been sued, and tell everyone who will listen. The legal community is fond of reporting to the public that it is a small group of bad apples who commit the vast majority of malpractice. These self-appointed knights of the courtroom claim that they, the public-spirited individuals that they are, stepped in to protect society from doctors who don't police themselves.

I can't find any published figures to support the concept of these bad-apple doctors. I do know of at least one study to refute the idea. Dr. Dan Caliendo wrote from Kansas that his county medical society study, using state data, failed to demonstrate any “frequent flyer” club of repeatedly sued physicians. Rather, and sit down for this shocking finding, they found that busier doctors in high-risk specialties were the ones being sued!

What the truth is and what the public believes are two very different things, and we are at least partly responsible for their ignorance. If citizens believe that malpractice is committed by a few bad doctors, why in the world would they ever want to change the laws involved? If they understand, because we all speak out and enlighten them, that virtually all physicians practicing clinically have been sued, then that is a horse of a different color!

This is going to take a bit of nerve by the doctors who first speak up. When one is being sued, it doesn't take long to realize that even one's most ardent supporters exhibit a presumption of guilt. “Why would he be getting sued if he didn't do something wrong?” There is definitely a stigma attached to the admission, which explains why doctors don't tell partners, families, staff, or patients. Of course, if we end this crippling silence, and with heads held high, enlighten families, staffs, neighbors, and anyone else who will listen, that stigma will soon disappear.

Doctors who speak out risk defying attorneys who have been telling us forever that we mustn't talk to anyone about our cases. Although somewhat out of character for the inquisitive scientists we are, we have generally respected their edict. The reason? Anything we tell our friends and family about our cases is potentially discoverable. I challenge the plaintiff's attorneys to depose my family, friends, colleagues, and neighbors, and find anything even remotely helpful to their case. These are my friends, after all. Having queried many litigators, none could recall or imagine ever benefitting from such a deposition.

I say we expose this ongoing travesty, loudly and repeatedly. We are compassionate, talented doctors who do the best we can for our patients. We aren't perfect; we don't claim to be. Spread the word that bad outcomes, not bad medicine, lead to malpractice claims.

I've found and I bet you will, too, that proudly moving forward and aggressively working to heal this festering sore we call “malpractice” is downright therapeutic. It sure beats whining. When we're successful, it's is a legacy worthy of leaving our juniors.

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About You've Been Served

After writing an editorial about being sued for malpractice for Emergency Medicine News in January, I was interviewed by American Medical News and contacted by 50 physicians, each with their own depressing and poignant story to tell. That convinced me that the personal trauma of this experience is underappreciated, largely due to our attorneys' adamant directives of complete silence, and that there are precious few outlets for the stress that has led some to suicide.

You've Been Served is dedicated to the thousands of committed physicians and other health care professionals, who despite their best efforts, devotion, and selfless lives committed to the best patient care, wound up in the defendant's chair on a malpractice suit. We should make no apology for our care, knowing that we are imperfect persons practicing an imperfect science in an imperfect world. We should take solace in knowing that bad outcomes, not bad medicine, leads to malpractice suits.

At best, I hope this column has an impact on litigation reform, abandoning the unrealistic, unattainable standard of care that has been set as perfection. At a minimum, I hope to serve as a sounding board for the countless professionals who have been subjected to personal attacks by the very patients we have vowed to help. — GH

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Write to Dr. Hossfeld

Share your malpractice story with Dr. Hossfeld by writing to him at EMN@lww.com.

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Only Online

Read Dr. Hossfeld's original EMN editorial, “Speak the Unspeakable: ‘I Was Sued for Malpractice’” by clicking here.

© 2009 Lippincott Williams & Wilkins, Inc.

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