How to Lose a Malpractice Lawsuit

June 26, 2019

Six tips you absolutely should not follow when facing a malpractice suit.

One of the editorial themes for this month regards what to do when facing malpractice lawsuits. Definitely an area in which there is much valuable wisdom to be gleaned, and readers should hearken to it when presented.

That said, anybody who’s made it beyond residency training in the field of healthcare, at least in the Litigious States of America, has probably heard most of it before. It’s a sad state of affairs that so much of the practice of medicine is directed by the omnipresent threat of legal action, but this has been the way of things for pretty-much ever. Medical education and training would be remiss if it didn’t somewhat prepare future docs for a professional life wallowing in the medicolegal morass.

Related article: Malpractice in Radiology

Despite such prep, I’ve heard more than a few tales of docs who proceeded to do precisely the wrong thing(s) when they found themselves in the clutches of ambulance-chasers-making me wonder if, on some psychological level in these individuals, there is a thanatotic drive to achieve bad outcomes.

In service to them (and to get a chuckle or two from others), I thought I might offer some pointers as to how to make it easy for your medmal antagonists-and perhaps drive your own defenders a little crazy on the process.

1. Blame yourself. You might have heard that a lot of docs get sued (approaching 50%, over the course of a career). And that the majority of cases are dropped, dismissed, or withdrawn. Forget all that-decide that you’re the only one this has ever happened to, and also that you probably deserve it. Be sure to wear your heart on your sleeve, so everyone knows you’re guilty of Crimes Against Humanity. This is especially important during depositions and courtroom appearances: Avoid eye contact and mumble. Alternatively, behave like a perp on the “Cops” TV show: Act belligerent and make everyone, including judges, really want to see you lose.

2. Expect a speedy resolution. You might have heard at some point that one of your basic rights is to a “speedy trial.” So, obviously, if things are going well, you should be done with the medmal process in a few weeks, maybe months at most. If it takes longer-certainly if things drag on for years before there’s even talk of a court-date-chances are it’s going poorly. Be sure to let this permeate all other aspects of your life and eat away at you. It’ll help you “look the part” of blaming yourself, as discussed above.

3. Fix the records. Write extra notes in the patient’s chart, make addenda to your diagnostic reports, and adjust stuff you previously documented if you can. Provide commentary about things that happened weeks, months, or years ago. Write up your own “personal” accounting of how events transpired. Nobody will ever know you did this after the fact, right? Even if they found out, they’d surely understand that you wanted to document your side of the story rather than suspect you of fraudulently rewriting history in your own favor.4. Tell everyone all about your situation. Maybe you want to know other folks’ opinions, maybe you just want to commiserate. “A burden shared is a burden halved,” right? Thank God for social media; look how many more people you can broadcast your every random thought to! Don’t let scary legal concepts like discoverability make you bottle everything up-none of your emotive spewing could possibly come back to haunt you later on.

5. Clam up, or self-contradict, around your legal team. Now that you’re freely expressing yourself to everyone else under the sun, be sure to give the attorney(s) and experts defending your case as little to work with as possible. Hey, they’re getting paid the big bucks to save your hide, right? Why should you lift a finger to help? Besides, remember that you were a lousy doctor and brought all of this on yourself in the first place, so what could you possibly have to contribute? Also, your defender might be in cahoots with the plaintiff’s attorney. Best to keep them all guessing.

6. Point fingers-all over the place. Just because your other behavior is screaming “I’m guilty of everything!” doesn’t mean that you can’t drag other people down with you, whether they deserve it or not. Hey, if some of them have deeper pockets (or more generous medmal coverage), maybe the plaintiffs will go after one of those bigger fish and you’ll get off easier. Come up with ways that everyone involved in the case-other docs, nurses, ancillary staff, heck, even the patient and family-contributed to bad outcomes. Best yet, offer up ideas about how policies, procedures, and inefficiencies of the healthcare facility itself caused the whole mess. Plaintiff’s attorneys probably hate it when they have a whole slew of defendants to go after, providing evidence against one another. Untidy and chaotic-certainly not like shooting fish in a barrel.