Physicians’ Steps for Legal Recourse Shaky

Hard for doctor to counter derogatory comments or poor ratingsMalpractice suits are filed almost every day. Not all of them are justifiable. What steps are in place for physicians' redress?According to Mike Cates, executive vice president of the Memphis Medical Society, “Anybody can be sued. The difference is how much proof there is to sustain a case. And generally there is not much case law to support malpractice counter-suits.”And while the First Amendment of the U.S. Constitution guarantees freedom of speech, slander and libel are not without their own consequences. A plaintiff making untrue, defamatory accusations against a physician can certainly impact future earnings. But the problem with defending such claims lies with the burden of proof. To prove a physician has been defamed, he or she has to prove their harm or injury was a direct result of a malpractice suit, or even from bad ratings on websites and social media.“Social media and websites offer visibility for physicians,” Cates added. “But if someone chooses to make derogatory comments or assign poor ratings, it is very hard for a doctor to counter because most of those postings are anonymous. It would be almost impossible to discern who to sue for defamation of character.”David Cook, a practicing healthcare defense attorney in Memphis for 37 years, said patients sue when they experience bad outcomes, whether the doctor is at fault or not.“We don't follow British rule, where the loser of a case pays for all associated costs. Instead, in America, jury verdict is the final resolution for a dispute, and we have a constitutional right that guarantees any citizen who feels aggrieved has the right to file suit.”When physicians are beginning their practices, they are often advised to secure as much malpractice insurance as they can afford. Coverage is often calculated based on available data per specialty. Those going into higher-risk fields of medicine (i.e., obstetrics vs. dermatology) are advised to seek higher levels of coverage.But assuming the worst does happen and a physician is sued for malpractice, what then?“If the court finds in favor of the plaintiff," Cook said, "the physician always has a right to appeal. A motion can be made for a new trial. Or a motion can be made asking the judge to reduce the verdict. In either scenario, the case would move along into the Tennessee Court of Appeals. Typically is takes six to 12 months for a case to be put on the docket and heard in the state Court of Appeals. The good news is that filing an appeal stops payment of court-ordered awards, but the clock doesn't actually stop. Simple interest, at the rate of 10 percent, is being compounded annually from the day the original order was signed.”And getting the case heard by a higher court is no guarantee that the verdict will be overturned. In fact, the ruling of an appellate court could find errors in the original proceedings and order a new trial. Yes, the whole thing could start over again. Or the verdict could be upheld. In the latter scenario, the doctor has one more option, to appeal to the Tennessee Supreme Court. But that court has a right to refuse to hear the case.If there is not a constitutional issue at stake or other jurisdictional basis for the court, the case does not qualify for Supreme Court jurisdiction. However, if the case is accepted by the state Supreme Court, it is likely to be another six to 12 months before the case is heard.Recent state reforms are lessening the number of malpractice cases that actually are filed. The state medical malpractice reform acts of 2008 and 2010 put qualifying stipulations in place.Plaintiffs are now required to file a certificate of good faith with the court to show that they have consulted with a medical expert about their case AND that they have been told their case has merit. These procedures have led to approximately a 40 percent decline in the number of malpractice cases filed since 2010.“Close to half of all physicians have been named in a lawsuit," Cook said. "But many malpractice cases are dismissed or settled out of court and never go before a jury. Of the cases that do get heard, over 90 percent result in verdicts in favor of the defendant, the physician.”Michael Gelfand, MD, an infectious disease specialist on the teaching faculty at the University of Tennessee Health Science Center, has been sued several times, as have his colleagues who practice in high-risk specialties. One of Gelfand's cases went to trial in federal court and resulted in a defense verdict. His other cases have been summarily dismissed with no payment ever having been made.“When it happens the first time, it feels like a personal matter," Gelfand said. "You don't expect that it would happen to you. Most people who enter the field of medicine do so primarily to take care of other people. Generally, the population of physicians is preselected for being altruistic because they care about the suffering of others. So it is always a shock when a patient lashes out. This is someone you were trying to help . . .”“The dynamics are not unlike a divorce. Feelings of 'I did the best I could' and 'Why is this happening?' are usually coupled with 'How could someone I cared about lash out at me this way?'”When people feel harmed, they often want to avenge themselves. For instance, in the case of an obstetrician, the hoped-for outcome is a healthy baby. But unfortunately that is not always the case. And when there are problems with a baby, families often look for someone else to blame.Gelfand postulates that physicians have to erect psychological defenses in order to cope with being sued.“Doctors have to learn to take being sued less personally and learn to deal with it in a business-like manner," he said. "However, there are some personal traits that can be remediated. For instance, if they have an ineffective communication style or do not establish interpersonal bonds with their patients, then they can work to improve those skills. But the greater risk in the aftermath of being sued is that of becoming desensitized to the point that it can poison a physician's relationship with other patients.“A doctor doesn't want to work from the prospective of preventing litigation. While negative emotions are normal, generally it is best to proceed with the practice of medicine and not seek a counter-suit. Although the physician retains the right of appeal, it often proves to be too difficult to prove the plaintiff's intent was malice.”