Feature Article

Why Do Patients Sue Doctors?

By Richard J. Andolsen, MD

SCMA’s Medical Review Advisory Committee is a group of physicians who confidentially review the medical issues of professional liability cases. The committee serves as a sounding board, using the experience and viewpoints of its members to give a comprehensive perspective to the cases, which are presented anonymously.

Because we are a peer-review committee, our discussions are protected from discovery by Article 1157 of the Business and Professions Code. The members of the committee sign a document of confidentiality, so you never hear about our activities. But our meetings feature lively, exciting, educational, and sometimes contentious discussions of the standard of care in our community.

In my 20 years on the committee, I have been impressed that my colleagues have the same desire for perfection—and intolerance for anything less—shared by all physicians. Their insight and experience are invaluable.

The reasons patients file malprac-tice suits are complex. Every suit that we discuss on the committee involves some kind of perceived loss. Poor doctor-patient communication and defensiveness by the treating physician are common factors in a patient’s decision to sue.¹ Our society has high expectations of the medical profession and tolerates nothing less than perfection.

Our society also strongly emphasizes individual rights, and those rights are often pursued through lawsuits. Physicians are seen as highly paid, with “deep pockets” in their malpractice insurance companies.

Those companies can give detailed statistics on the types of lawsuits by medical specialty, the percentage of suits that are successfully defended, and the cost of the average award. They have also compiled the following surprising statistic: 69 percent of malpractice plaintiffs arrive at the decision to file suit on the basis of a subsequent treating physician’s recommendation to “consult an attorney.”² Indeed, 38 percent of plaintiffs in medical malpractice cases are in the health professions.²

The myth is that physicians protect each other. The fact is that physicians are more critical of each other than their patients are. Seventy-three percent of physicians reviewing a malpractice case are critical of the care provided by a fellow physician.³ In contrast, less than 10 percent of juried malpractice trials are decided for the plaintiff.¹

Physicians who would prefer to be judged by their peers are asking for a very critical audience. In an experiment, 22 cases involving adverse outcomes were presented to two groups of physicians who were asked to evaluate the appropriateness of care. Both groups were provided with identical facts, but one was told the outcome was permanent and the other was told it was temporary. The quality of care was rated much lower by the group of physicians who saw the outcome as permanent.⁴ “Outcome bias” and “hindsight bias” affect physicians more than their lay counterparts.⁵ Physicians hold themselves and their peers to a high standard.

When subsequent treating physicians are presented with the “facts” of an adverse outcome by a patient, they receive only a partial picture of what happened. The presentation is often colored by anger, unmet expectations, and hidden motives, and the patients are on their best behavior. Most important, the subsequent treating physicians have no access to what went into the decision-making process of the original treating physician. After reading hundreds of transcripts of malpractice cases, I have been impressed that perception of incidents is markedly different depending on the outcome and motives of those involved.

“If only you had come to me sooner.” That statement could be a reflection of the constant striving for perfection that makes a physician. Unfortunately, it can also reflect an inflated ego—and it can be the source of a lawsuit. The standard of care is not “what I would do.”Original treating physicians who act differently than subsequent ones do not necessarily provide substandard care.

The standard of care can be defined as “what a physician of similar education, training, and experience would do under similar circumstances.” The standard does not say what the “best”physician would so, but what the “average” or “reasonable” physician would do. The question in malpractice cases is what a reasonable physician would do given the same circumstances and information. The issue is not whether there was an adverse outcome (which will happen in a given percentage of cases), but whether the decisions of the original treating physician were informed and reasonable.

Subsequent treating physicians are often asked about quality of care and the possibility of filing a lawsuit. Several points to remember:

• Ask the patient to discuss the case with the original treating physician. Only that physician can explain the reasoning and decisions involved.
  
• Acknowledge that you are receiving partial and filtered information that makes an accurate judgment difficult, if not impossible.
  
• If you really believe you are better than all the other physicians out there, check with your spouse for a dose of reality.
  
• Realize what a lawsuit can’t do. It can’t bring back a loss or a lost one, and it interrupts or supplants the grieving process that leads to acceptance of a loss. An adversarial system also prolongs the anger component of grieving and subjects the plaintiff to discovery of many details of his or her life.
  
• The legal process is slow, and most malpractice plaintiffs lose, thereby becoming liable for court costs. If plaintiffs win, attorneys take a large percentage of their award.

If you believe an original treating physician has provided substandard care, SCMA has a Professional Standards Committee where peer-review care issues are discussed. If you feel the physician is a danger, you can always report him or her to the Medical Board of California.

Finally, if you are really concerned, talk to the physician yourself. Find out the facts. See the decision from his or her perspective. If necessary, educate him or her so we can all continue to strive for the perfection that is so important to physicians.

References

1. L. Crawford, “Preparing a defendant physician,”Medical Malpractice, 12:10 (August 1996).
2. L. Crawford, “Why winners win,” Norcal Forum (Dec. 6, 2003).
3. K. Poser et al, “Variations in expert opinion in medical malpractice review,” Anesthesiology, 85:1049 (1996).
4. L. Crawford, “Be aware of outcome bias,” Medical Malpractice, 16:11 (September 1999).
5. L. Crawford, “Hindsight bias: molding malpractice in retrospect,” Medical Malpractice, 16:10 (February 1999).

Sonoma Medicine, Volume 55, Number 2 (Spring 2004).