A Medical Malpractice Attorney Tells It Like It Is

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By Birdstrike MD

Below is conversation between an Emergency Physician and a medical malpractice attorney. It was originally posted on Student Doctor Network by an anonymous poster that goes by the handle “TrumpetDoc.” It has been reprinted and edited with permission of the original author. If you have any thoughts or experience regarding medical malpractice, from either the plaintiff or defendant side, I’m sure you’ll find it quite interesting.


Recently I [TrumpetDoc] had a discussion with a local medical malpractice plaintiffs’ attorney at a social gathering. Since I have been hearing often from my former group’s lead MD/JD and influential leaders in Emergency Medicine, that increased medical testing never protected anybody, I asked his thoughts on the subject. His comment was,

“That’s Bull—t! When there is a bad case or outcome, and I see an upstream doc that had the chance to make the diagnosis with a test or procedure, I smile every time. I can get an expert from any specialty to debunk a doc’s thought that his/her exam and thoughts are good enough these days. And if we go to trial, I have a pretty set script here. To the effect of ‘so Doctor, you just didn’t care enough about my client to order this test?’ Or ‘so my client was just a statistic, just a percentage to you?’… [Juries] love that stuff!”

He went on to explain that the medical malpractice environment will be getting worse for us doctors and he was extremely bullish on the med-mal business in the coming years. He continued on,

“You guys are being hung out to dry. So are hospitals. There is already starting to be a contraction on spending and ‘costs.’ This is just awesome for me. There will be a lot of bad discharges, refused admits, procedure delays, diagnoses delays, all in the name of ‘costs.’ Your societies and hospitals are masking this as evidence based practice, etc. But I can get a jury to see that very differently. A lot of physicians will be paying out before long, as will hospitals…Testing is what makes diagnoses, saves people.”

I rebutted by explaining that malpractice cases are best prevented and defended not by practicing “defensive medicine” but by documenting in the chart our thought process, differential diagnosis and rationale, using the concepts of clinical acumen, experience, and evidence and that our own experts could and would defend our actions. He responded with,

“But that is in your world; people live in mine… juries live in mine,” with a smug smile and chest tapping. I had to restrain myself. He continued on, “If a patient is in the ER and wants to be admitted…you better just pray nothing happens in a reasonable time frame after if you discharge them against their wishes.” I asked about defensive medicine protecting from us suits and he said,

“To a point, it does. Will you get sued? Sure. Will I be less inclined to take a case that had a complete workup? Yup. If you appear to me like you cared and did everything you could, you certainly more protected.”

To him that equals ordering tests such as labs, CTs, and MRIs in the ED and admitting patients to avoid risk. He went on to say,

“Nurses will hang you. EHRs [Electronic Health Records] are awesome! And nurses chart everything they freaking think of while in the ER with a patient. They are there to cover their butt, and often it is very helpful to me. It is so common that there are discrepancies in the medical record, and now they are so easy to find.” Regarding Choosing Wisely, he said,

“This will do nothing to protect anyone. Any junior litigator can paint the doc and societies as the bad guy here.” The conversation made me cringe. The “perception” is that tests must be done. But we are being told that there is no reason to fear, that our own efforts to reduce healthcare will come back to bite us. At best, the powers that be are simply not telling it like it is. – TrumpetDoc


Having read this online, I was struck by what appeared to likely be brutal and transparent honesty, and the words though very harsh, seemed to ring true. On one hand, there’s much talk nowadays of “reducing costs” by decreasing testing and admission to save “a broken system,” yet on the other hand, we receive signals seeming to imply that no missed diagnosis is acceptable, that the risk of not admitting and not ordering a test is much greater than one of questionable necessity. We are told that it is our job to make diagnoses and admit sick people.  We are also told that practicing defensive medicine will not “defend” against anything or prevent lawsuits.  Yet at the same time, the gold standards of diagnosis and treatment for many of our most critical diagnoses are exactly what we are told will not protect us: diagnostic tests and the act of admitting people to the hospital for further treatment and evaluation. The words of our own teachers seem to ring more hollow and less true, than the words of one who many would cast as “the enemy.”

What is your opinion? Are these just the empty words of an overly boastful plaintiff’s attorney intent on rattling the cage of an unwitting and disarmed physician? Or do they ring true, and sound more like “strategic secrets” gifted from an adversary in a moment of weakness or rare contrition?

Provided by Joshua C. Harper, CFP®, CLU®, of WealthMD (877-Our-MDPlan or jharper@wealthmd.com).

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