In my career as a practicing Oncologist and medical-legal expert in malpractice litigation, on behalf of injured parties and defendants, I thought I understood why people sued their doctor. I assumed they did so out of anger over a bad outcome. Occasionally I would see a new patient in consultation whose cancer diagnosis had been delayed through physician error. Sometimes the patient appreciated that a delay had occurred. Less often he or she would ask me: “Should I sue the doctor who caused the delay?” When that happened I sensed, or perhaps inferred, anger from my patient.
When I started start writing about my litigation experience for these blogs it occurred to me that I might not really understand why patients sue, so I tried to find out. I could have asked the patients involved in these lawsuits, but most of them are dead and I was reluctant to stir up emotions among the living. Furthermore my contact in these cases was with the attorney, not the patient or his physician. In fact, I carefully avoided dealing with either the patient or the doctor. My Oncology practice involved complex emotional issues, and I wished to avoid these in my consulting work.
So I started calling personal injury lawyers with whom I had worked. I picked the most seasoned and capable of the many I had met. I asked them all the same question: “why do injured parties see you in the first place?” I was surprised by what I learned.
Why Do People Sue Doctors?
The lawyers gave me remarkably uniform answers. Most people who come to see a lawyer who represents injured parties are not angry with the doctor. According to my inquiry, there are two much more common reasons that drive patients to sue their physicians:
- Financial Worry
Most family members seek legal recourse for perceived injury out of fear of the unknown – fear especially that the survivors of the injury won’t be able to function financially. Many potential litigants express embarrassment over having brought up the issue of litigation; they sense a stigma attached to suing doctors.
- Perceived Injustice
Some sue just because of a perceived injustice without regard for the potential financial windfall. Most of the lawyers say that the occasional angry plaintiff is difficult to work with and often incorrect in his or her perception of what happened. The lawyers unanimously agree that those people are the exception. As one attorney’s nurse paralegal told me, “We’re in Texas, so a small minority of clients want to shoot their doctor, but only a minority.”
- Frustration with the Doctor
The third reason cited and the smallest percentage is a perception that the doctor was arrogant and unsympathetic.
There is a current belief among hospital and physician executives that if an error is made the family should be fully informed as to its extent and how the hospital intends to prevent another similar event from occurring. Full disclosure is the new mantra; the expectation is that full disclosure and apology prevents lawsuits. My informal survey fails to confirm the value of this approach. I am not advocating dishonesty because it is intrinsically unethical; however, based on my data with its limited sample size I fail to see how this approach can prevent litigation.
The Role of a Personal Injury Lawyer
Most experienced plaintiff’s lawyers turn down the majority of those who come to see them. Unless they see a virtually airtight case, attorneys don’t want to risk the time and expense required to fund a case that can go on for years and cost several hundred thousand dollars to pursue. There has to be clear-cut negligence on the physician’s end, and that negligence must have caused the injury observed in order for a case to get to a jury. (Otherwise the judge may simply dismiss the case.) If successful the plaintiff pays the legal expenses; if not, the lawyer usually gets stuck with them because the average plaintiff who has been through a catastrophic illness is destitute.
A talented lawyer essentially becomes a diagnostician. I gained a new appreciation for what a skilled personal injury lawyer does in evaluating the case of the patient who had undergone a liver transplant and then infarcted his small bowel. At the first visit with his attorney the client’s concern was about the care he received during his small bowel transplant. His lawyer had to peel back the layers of complexity to discover that what his client should really be concerned about was the stopping of his blood thinners after his hemorrhoids had bled. This took considerable investigation on the part of the lawyer but will result in a more focused and appropriate lawsuit.
Sometimes the hired expert can help the lawyer figure out what the case is or isn’t about, but the lawyer has to decide what kind of expert to hire. I believe this attention to detail and medical knowledge separates the truly talented and dedicated personal injury lawyer from the hordes who advertise on billboards and television. Sometimes the case isn’t about what it seems to be about.
In conclusion, I believe the public’s perception – that the average litigant is looking for a short cut, a way to win the medical lottery – is false, but I harbored the same prejudice before investigating this issue. Stay tuned in upcoming weeks for more lessons from the courtroom.
Dr. James Stark is the founder of StarkOncology, where he practiced Oncology in Hampton Roads for thirty-four years. He is now a health-care consultant specializing in topics such as breast cancer, colon cancer, lung cancer, chemotherapy complications, and failure to screen. In addition to this new venture he continues to serve as Professor of Medicine at Eastern Virginia Medical School.