Doctor wants to share trials of liability suits with peers
■ A column analyzing the impact of recent court decisions on physicians
By Amy Lynn Sorrel — covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted March 9, 2009.
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Getting sued is one thing. Going through a trial is quite another. It's been said that every physician can expect to be sued at least once in his or her career, likely more often for those in high-risk specialties. Throughout his 30-year career, Illinois emergency physician George E. Hossfeld, MD, saw a number of lawsuits with his name attached, only to find himself or the case dropped later.
Dr. Hossfeld, an assistant professor of emergency medicine at the University of Illinois at Chicago and a past president of the Illinois College of Emergency Physicians, was no stranger to the courtroom, having served as a defense medical expert witness in numerous trials.
But a 2001 incident gave him an entirely different perspective on the courtroom. That year, a patient he had treated for a gastrointestinal bleed and later admitted to an intensive care unit, died after complications arose. The family sued about two years later and this time, the lawsuit did not disappear. Instead, it turned into several years of depositions, and a six-day trial that ended in Dr. Hossfeld's favor in April 2007.
"In the Courts" talked with Dr. Hossfeld about the process, which he characterized as a "life-changing event." He described an important need to break the silence and stigma over physicians getting sued -- not just to help repair the medical liability system, but also to help doctors in similar situations repair their lives.
Question: What, if anything, surprised you about the trial process?
Answer: There's no shortage of experts who will line up to say they can turn water into wine. As things started progressing, I started going to the other depositions. Normally you'd go to your own deposition and that's usually about it. But I thought, I want to be part of this; it was me that was being affected. So when the plaintiff's expert, the emergency physician against me, testified, I wanted him to sit across the table from me and say these things. And as it turned out, what he testified across the table from me was way different than what he had said on paper. He definitely had reduced the allegations.
Then, over the course of the case, the other two doctors [named] were dropped, and I could not understand that. Because, medically speaking, once a patient is in the ICU, he's their legal responsibility. ... That's when I started feeling like a real victim because my lawyer explained to me, that might be the right thing, but from the jury's eyes they'll never convict a doctor who didn't see the patient. And I thought, "Wait a second, that isn't fair." Anyway, I went to about eight of these depositions ... and as this went on, there was probably a pile a foot thick of medical records I went through several times. I probably missed about a month of work [throughout the process]. It was a long time.
Question: You described this as quite an emotional experience. How did it personally affect you?
Answer: The month leading up to the trial was really stressful, because you start picturing in your mind, "Wait a minute, I could lose this case." You realize that the medical facts don't matter a lot. As a matter of fact, when they pick a jury, that's frightening. When you're sitting there, anybody who shows any knowledge at all of medicine -- maybe their wife's a nurse or their brother's a lab tech -- they're disqualified. ... [If the hospital hadn't remained in the case,] I was going to be the sole defendant and my practice limits were $1 million. That meant if it's a judgment greater than $1 million, it could go to my personal assets. That gets your attention.
You live in this ignorant bliss, where you think if you practice good medicine and you write everything down, you are pretty protected. I just think that until you are in that defendant's chair and you see the reality of it -- people who say that haven't been through a trial. And I thought, "I'm a good doctor, I take care of my patients, I worry about them. I was a past division chief and president of my professional society, a good contributor. This just isn't fair."
During the trial, they are saying things about you that are really personally attacking. My wife's an emergency nurse and very supportive, and by the end of it, our thought was, "Let's get out of medicine as quickly as we can." I didn't think I could survive another one. I think it's faded some, but I'm going to retire sooner than I would otherwise. If I can retire when the last kid is done with college, I will be out of there, no question.
Question: You won your case, and statistics show that 70% of medical liability cases end in favor of the defendant. Does that offer any comfort?
Answer: It's hard to call yourself a winner. I would never go through it if somebody had paid me $1 million. Maybe, but that's about the price tag. The way I see that, it's just a testament to the fact there are so many nonsense suits filed. It's kind of like, 99% of all lottery tickets bought never pay off. But still, you don't know if you're the one. And I'm really convinced it could have been the next day or 12 different people [on the jury] the same day, and they would have found me guilty. When I hear about somebody who's been successfully sued, I don't think I'm above them. I just think, "You got the jury I didn't get."
Question: Did you talk about this with colleagues? What was their reaction?
Answer: I asked around and really was not finding anybody who admitted it. And I called [local and national medical organizations], and couldn't find a support group. I said, well, this is amazing, with all the doctors being sued. I did find one of my friends who told me he had been through at least parts of a trial, and then it settled. So it was good to talk. But you feel like, there's something wrong here. And when you tell other people -- nurses, other doctors, neighbors -- you get the distinct impression [that even though] they support you, they think, "You wouldn't have been sued if you hadn't done something wrong." So there's this presumption of guilt, and you feel isolated.
Question: Why do you think it's important to talk about this, and what would you want other doctors to learn from your experience?
Answer: I think all doctors should be aware of the fact that they are not immune from this. They could be in that [defendant] seat tomorrow. Out of my 12 graduating residents, six of them were sued before they graduated [from the three-year program]. That's the magnitude of this problem.
But doctors don't tell their patients, their office staff, their families a lot of times, because of the stigma of this presumed guilt. It's really a black mark on your reputation. And I think it's wrong of us not to talk about it. It becomes a whole different animal when the public realizes that good ol' Dr. Jones who delivered their baby, and Dr. Smith who takes care of their eyes, and the kids' doctors -- all these other doctors that they trust -- they've all been sued too. Then [the public] might think, "Wait a second, maybe this really is a problem."
[Doctors] need to talk about it more, and I'm personally trying to start a litigation support group. I've actually got a little network of guys who have been through trials. They've all been winners, but we're the first to admit, if we'd been losers, we probably wouldn't be coming forward. The hard thing is to find people who are likely to say they've been sued and join a support group, because that would be going public with it. You almost need to have big insurers require that, when [doctors are sued], they go to a support group just once. Because I think when doctors are there and they get to talk it out with other doctors with similar feelings of victimization, they would like it and they would keep coming back. You start reading about the number of doctors who commit suicide over this, and it's frightening. ...
And I was a winner, too. If you lose, you lose everything. I would want physicians to talk about it a lot, and tell their families, their friends, their patients, "Yeah, I got sued. And it's just a big problem we need to fix."
Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.