A Shoe-in for Malpractice
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Am Fam Physician. 2003 Aug 1;68(3):565-567.
Several months ago, I delivered a 36-week fetus with intrauterine demise. There had been no complications during the pregnancy, and the death was completely unexpected. I thought that I had been on good terms with my patient throughout her pregnancy and had been involved in all aspects of her prenatal care. Nonetheless, six weeks after the tragic event, I received a letter from an attorney stating that he had been retained to investigate the death. I heard nothing more on the matter until recently when this patient showed up for an appointment.
She is pregnant again and wants me to continue to be her physician. When I asked her if the suit was proceeding, she admitted that it was. “Then how can you want me to be your physician?” I asked. “It's not me who wants the suit,” she said, a little tearfully,“it's my family. I still want you to be my doctor.” Because I feel comfortable that the intrauterine fetal demise was not related to any lapse in my care, I am inclined to be willing to continue as her physician. Needless to say, I am a little edgy about future adverse outcomes. Is there a conflict of interest if I resume her obstetric care? What risk-management issues should I be aware of? Does it make sense for me to continue to care for this patient?
The questions being asked in this case scenario can be consolidated into one, “Should I continue as this patient's physician?” An attorney's typical answer to such a query is often a cautious “It depends.” In this case, a more definite answer is appropriate: “No.”
Returning to the first of this physician's three questions, conflict of interest is an unlikely issue in this case. Usual conflicts of interest involve situations in which one party is potentially advantaged at the expense of another party. An example of such a conflict would be a physician who refers a patient for an unnecessary magnetic resonance image at a facility in which the physician has an undisclosed ownership interest. A conflict exists between the doctor's interests (seeking financial gain) and the patient's interest (seeking appropriate care). In this case, however, the physician and the patient presumably have aligned and common interests—they both want the best possible medical outcome for the patient and the infant. On the other hand, if the physician's intention in continuing to care for her would be to persuade her to drop, or punish her for, her lawsuit, there would indeed be a potential conflict of interest (and probably a need for professional counseling).
The second question pertains to risk management and provides the most compelling reasons for advising that this physician no longer serve this patient. Patients sue physicians for a variety of reasons1; most often (in 70 percent of cases) they file suit because of communication problems, unwanted outcomes, unmet expectations, or a desire to save others from going through what they experienced.2 If any of these was this patient's reason for a lawsuit, the physician's inability to communicate effectively with her, to understand her needs, or to promote reasonable expectations on her part is likely to recur.
Sometimes patients sue because of economic need, even when they do not believe the physician was negligent. An example might be the parents of a child born with a handicapping condition who face overwhelming custodial and medical care costs. But, in a case of intrauterine fetal demise, the economic costs are usually negligible and an uncommon motivation for a lawsuit.
Still other patients sue for their pain and suffering. If this was the patient's motive, the physician must come to the difficult and humbling conclusion that his relationship with her was not sufficiently therapeutic to help her cope adequately with her suffering.
In all likelihood, her suit is borne of anger, hurt, and a desire to punish someone. Even if a patient genuinely likes and trusts a physician that she has sued, most lawyers would advise against continuing the physician-patient relationship, not because of an inadequacy on the physician's part, but rather because the patient, having already initiated one lawsuit, will be more likely to sue again in a setting similar to the one that engendered the original suit.
The third question involves the physician's relationship with this patient. Regardless of her motives and her expressed confidence in him, the patient has brought a lawsuit—declaring that she believes and alleges that the physician committed negligence and that the negligence caused her harm. Without those fundamental allegations, she would have no basis for filing a lawsuit. Even if she is able to reconcile the apparent contradiction between pressing a claim against the physician for negligence and continuing to entrust her care to him, the physician would have trouble trusting her.
As her suit plays out, her attorney, expert witnesses, family, and even her own testimony will challenge the physician's competence and commitment to her care. If this physician feels “a little edgy” now about future adverse outcomes, just wait until her litigation is complete!
If the physician were to continue caring for this patient, every doubting glance from her, every uncertainty he may have in her diagnosis or treatment, and every question that she or her family might raise about his care could undermine his confidence in himself and potentially compromise his judgment. The physician's eagerness to prove to his patient and himself that he is a quality physician likely could cause him to alter not only his usual clinical decision-making process, but the time spent with her and other patients. As a result, he might place this patient or other patients at risk of getting too much or too little attention from him.
The safest approach toward dismissing a patient who files suit is to follow the same protocol the physician would use for anyone else he might dismiss from his practice. The usual approach is to send a written notice of his intention to no longer provide care for the patient, while remaining available to her for a set period of time (usually 30 days) for emergencies, until she can find another physician. Practically speaking, however, the courts are likely to be more forgiving of a physician who, rather than offering interim care, refuses to see a patient immediately after a suit is filed, because the suit will usually be deemed by the court to be an emphatic statement of the patient's intention to terminate her care with the physician.
It is tempting to imagine that physicians can fix every patient's every problem. The physician may be inclined to continue to care for this patient to redeem himself for her tragic loss or out of a desire to assuage her understandable grief. He may feel flattered that she came back to him after her loss in spite of her existing lawsuit. Yet, by filing a suit she has declared that the care she received from this physician was suspect and that his efforts at empathy were inadequate. As the physician in this scenario considers her pain, he also should reflect a moment on the pain that this patient and her attorney are about to inflict on him and his family.3
Even if this patient is being truthful and is not invoking her family as the source of the lawsuit simply to placate the physician, he will still have to deal with her family if he continues to care for her. He needs to consider the almost unimaginable: what if a catastrophic event in this second pregnancy results in this patient's death, through no fault of his own? Her family members have already demonstrated their readiness to sue him as a way of dealing with their anger and loss. They are likely to do so again.
As family physicians, we value highly our ability to relate effectively to our patients and believe that this ability is the essence of the therapeutic relationship. Yet, none of us is the right doctor for every patient. Failure to recognize that reality leaves us vulnerable to the enduring aphorism: “Fool me once, shame on you; fool me twice, shame on me.”
RICHARD G. ROBERTS, M.D., J.D.
Professor of Family Medicine
University of Wisconsin Medical School
1. Vincent C, Young M, Phillips A. Why do people sue doctors? A study of patients and relatives taking legal action Lancet. 1994;343:1609–13
2. Roberts RG. Seven reasons family doctors get sued and how to reduce your risk Fam Pract Manag. 2003;10:29–34
3. Charles SC. Wilbert JR, Kennedy EC. Physicians' self-reports of reactions to malpractice litigation Am J Psychiatry. 1984;141:563–5
Please send scenarios to Caroline Wellbery, MD, at firstname.lastname@example.org. Materials are edited to retain confidentiality.
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