Year after year, the suit rate against Medical Justice members has been well below the national average. The average doctor is sued at a rate of 8-10% per year. Medical Justice members are sued at a rate of under 2% per year. And Medical Justice is top-heavy with high risk specialists from high risk states. How do they do this?
Medical Justice launched in 2002 as a physician-based organization focused on keeping doctors from being sued for frivolous reasons. Medical Justice holds proponents of such lawsuits accountable in a number of different venues. The organization files countersuits and counterclaims against those who propel meritless suits. Year after year, the suit rate against Medical Justice members has been well below the national average. The average doctor is sued at a rate of 8-10% per year. Medical Justice members are sued at a rate of under 2% per year. And Medical Justice is top-heavy with high risk specialists from high risk states. How do they do this?
First, some background. Jeffrey Segal, the founder of the organization, practiced as a neurosurgeon for approximately a decade. Most recently he practiced in Indiana, a state that had long implemented substantive tort reforms. In the mid 1970’s, the then-governor, Otis Bowen, was also a physician. He helped spearhead reforms which helped lower professional liability premiums. The Governor also helped establish expert review panels to screen cases before they could enter the formal medico-legal system.
In spite of this “idyllic” medico-legal environment, Segal was sued one time for professional liability. He took care of a patient who fell off of a horse. The patient had been drinking. And when he was transferred to Segal’s hospital, CT revealed a fractured and dislocated cervical spine. Fortunately, the patient had no neurological deficits. Segal repaired the fracture using a posterior cervical implant. The patient remained neurologically intact, his post-op stay was uneventful, and he was discharged home.
Segal moved to North Carolina. In the interim, the patient saw a chiropractor for mild neck ache. The chiropractor took routine films and observed one of the screws in the construct had backed out a few millimeters. The film also demonstrated a solid union, the desired goal of the original fusion. The final location of the screw was clinically irrelevant.
The chiropractor did not know this. As Segal had moved, the chiropractor referred the patient to another neurosurgeon. This practitioner told the patient he would need another procedure. The screw was never touched. And a perfectly good union was taken down. This neurosurgeon then served as an expert witness in a legal claim against Segal. The neurosurgeon had never seen nor performed the posterior cervical construct. Yet, he felt comfortable opining on its standard of care.
This expert had actually been expelled previously from Segal’s professional society, the American Association of Neurological Surgeons, for delivering egregious testimony. That de-credentialing did little to impede his second career as an expert, testifying in court.
The case against Segal was dropped several weeks before trial. As Segal stated, he never felt as if he won anything. He just felt as if he lost less.
Segal founded Medical Justice to help similarly situated practitioners. It is estimated that at any given moment, there are approximately 50,000 to 60,000 open medical malpractice cases. And, although tort reform in select states has addressed the severity of litigation (how much is paid out for a meritorious claim), such reforms have had far less impact, if any, on the frequency of litigation. And doctors must defend no less vigorously against meritless suits with a potential payout of $1,000 as they would for a meritless suit demanding several million dollars. Defending against a lawsuit is time consuming, exhausting, stressful, and expensive.
What Medical Justice Does
Traditionally, filing a countersuit is not easy. The time-honored mechanism for countersuing for a frivolous claim would point to a legal theory called “malicious prosecution.” Most attorneys who bring meritless cases are immune from the charge. The reason: an attorney acts as a zealous advocate for his client. Once he selects an expert witness to back the charge, he will, with a straight face, argue that he followed all of the rules. He took pains to pick a doctor to help evaluate the merits of a case. Only after doing such analysis did he file suit. By following these steps, it is virtually impossible to proceed with a countersuit alleging malicious prosecution.
Medical Justice does not fall back on malicious prosecution for support. They focus on the expert witness the lawyer picks. Experts should be reputable and accountable.
When a Medical Justice plan member sees a patient, he asks the patient to sign an agreement. That agreements states that should there be a legitimate dispute, each side will choose as experts doctors who are board certified and members in good standing of the doctor’s specialty society. Further, that expert will agree to follow that society’s code of ethics.
Segal states that had he had enough foresight to have his patients sign such an agreement, the single expert who did testify would have been foreclosed from serving. Absent that expert, it is unlikely the case would have ever been filed.
The agreements have been signed by hundreds of thousands of patients over eight years. The vast majority of patients are comfortable signing them. Clearly, these agreements make the most sense for elective patients. But, ER physicians can participate in a variety of contexts.
Radiologists, anesthesiologists, and other hospital based physicians often interact directly with patients and have an opportunity to obtain signatures on various documents. For example, anesthesiologists and ER physicians discuss and ask for informed consent from patients who will undergo a procedure. The referenced agreement can be presented at the same time. In addition, hospital based physicians are often dragged into cases as part of larger suits against other physicians. To the extent that these other physicians have contracts in place with patients, the likelihood of being caught in such shotgun suits decreases. A wide net of protection helps decrease the risk for an ER physician being named in shotgun suits.
The primary goal is deterrence – to keep a doctor from even being named in a frivolous suit in the first place. The second goal is to help a meritless case be dismissed sooner rather than later. The final goal is to promote a sense of fairness and justice. If a doctor has to defend against a frivolous claim for years, Medical Justice will review the case, once resolved, and pays the bills, up to $100k to file counterclaims.
From Theory to Practice
A 29-year-old woman was found at home, where she was down at least 30 minutes. There were no bystanders. After she was found, family members administered CPR but she remained in asystole. After 15 minutes the patient was pronounced dead at the hospital.
The ER physician was sued. The allegation. The patient had a high serum potassium and the hyperkalemia stopped the patient’s heart. The doctor must have missed the diagnosis or failed to treat. The doctor defended the patient was dead a long time before she ever arrived at the emergency room. His position was that the potassium level was high due to death and decomposition. The ER doctor was not dropped from the suit until the defense attorney contacted the plaintiff attorney to explain that the doctor subscribed to Medical Justice and had $100,000 available for a countersuit in the event the plaintiff loses the case.
The ER physician’s own words more colorfully describe the clinical and legal course of events.
The recent health reform bill signed into law is over 2,000 pages long. But the document says precious little about professional liability. Exposure to this liability strongly affects how we practice. Once a doctor has been sued, he will change how he practices forever. Medical Justice has promoted a time-tested program to level the medico-legal playing field so the tort system focuses on providing remedies to those who have truly been negligently injured; sparing doctors the indignity and injustice of having to defend against a frivolous case for years.