John Rusher, MD, JD, FAAP

Over the course of their careers, many pediatricians will be sued for malpractice. Whereas it is important to implement practice strategies that can reduce the risk of malpractice, pediatricians should know what actions to take if they get sued.

How common are malpractice lawsuits in pediatric practice?

American Medical Association’s (AMA) 2016 Physician Practice Benchmark Survey

, 34% of 3500 physicians surveyed have been sued and 16.8% have been sued twice or more.

 The results also revealed that the likelihood of getting sued increases with age. Although 8.2% of the surveyed physicians aged younger than 40 years have been sued, close to 50% of physicians aged older than 54 years also reported being sued.

Specialty choice is significantly related to likelihood of a lawsuit with only 17.8% of pediatricians sued and only 6% sued more than once.

 In contrast, 63% of general surgeons and obstetricians/gynecologists (OB/GYNs) reported a claim with 50% of surgeons and 44% of OB/GYNs reported being sued multiple times. Whereas pediatricians are less likely than other specialties to be sued, when losing or settling a suit, their payouts are among the highest of all specialists.

Injuries resulting in pediatric lawsuits are typically the consequence of medical errors, poor management, or errors in diagnosis. Tables 1 and 2 show the most common reasons for claims against pediatricians from an extensive examination of Physician Insurers Association of America (PIAA) data (from 1985 through 2006).

 When a child has brain damage, a lawsuit is not uncommon, especially when there have been complications of delivery or postdelivery management. Other frequent reasons for lawsuits include conditions missed during routine exams (eg, hip dysplasia) as well as missed diagnoses of meningitis, appendicitis, and pneumonia.

Good communication leads to fewer lawsuits.

·      Educate patients about what to expect during the visit;

·      Laugh and use humor during the visit; and

·      Solicit patients’ opinions and encourage patients to talk during the visit.

When a family feels their child has been injured by a physician, their initial step is to seek legal consultation. Malpractice lawsuits are very expensive to bring; thus, most law firms turn down the majority of potential claims. It can take several months from the time the patient seeks legal counsel until the lawsuit is initiated, and many more months or even years until the case is dismissed, settled, or goes to mediation or trial. Initially, you may receive a letter from the potential plaintiff’s attorney asking for medical records. If you receive a request for medical records regarding a patient and you suspect a lawsuit is being investigated, you should contact your insurance carrier and comply with the applicable state and federal law when providing all requested records.

If you are sued, you will receive a summons, the official notice that a lawsuit has been initiated, as well as a complaint detailing the allegations of the claim. Once this occurs, you must immediately notify your insurance carrier who will provide you with an insurance carrier notification and will assign a defense attorney to your case.

You must comply with all legal requests, but there are many things 

·      Do not attempt to contact the patient or the patient’s attorney.

·      Do not agree to talk with or meet with the plaintiff attorney unless your lawyer is present.

·      Do not discuss your case with anyone other than your spouse and attorney.

·      Do not make any additions or alterations to the medical record.

Conversations with your attorney are legally protected and good rapport is critical. Educate your attorney in the medical concepts of the case, empowering him or her to be your best advocate. If you feel that the relationship with your attorney is not effective, discuss this with your insurer and request the appointment of new counsel.

Discovery is the phase of a lawsuit wherein the plaintiff and defendant attorneys define the legal and factual issues of the case, locate evidence, and determine if the case should be settled or go to trial. During discovery you may be presented with interrogatories-written questions to which you should provide honest and thorough answers. Additionally, you will likely be required to testify under oath at a deposition where you will be questioned by the plaintiff attorney and required to provide answers that can be placed into evidence at trial. A deposition is not the time to offer your defense, but an opportunity for the plaintiff attorney to “lock down” your story. You should prepare by reviewing the record, researching the problems at issue, and rehearsing with your attorney. At deposition, confine answers to only what is asked of you. During the deposition do not argue and do not offer opinions about care being rendered unless advised to do so by your counsel. Furthermore, do not acknowledge a resource as authoritative or guess the rationale for other providers’ actions.

If your case goes to trial, you can improve your chances of victory if you are present and visible during the trial, including jury selections. You should stay alert, display an appropriate demeanor, and prepare for your testimony. Do not appear arrogant or lose control while the opposing expert testifies. You should provide answers to questions consistent with your deposition and attempt to teach jurors regarding the facts of the case as well. Remember to look jurors in the eyes and express sympathy for the patient and their family.

Fortunately, the majority of lawsuits against physicians are dismissed or settled. According to a recent report from the AMA examining 2015 data from the PIAA, 68.2% of all closed claims were dropped, dismissed, or withdrawn. Only 7% of claims were decided by a trial verdict, with 87.5 % of these won by the defendants.

Many physicians become angry, depressed, and subject to feelings of self-doubt in the wake of a malpractice lawsuit. Symptoms may include sleep problems, fatigue, irritability, or trouble with concentration. Seek counseling and adjust or reduce work hours if appropriate. Many physicians find relief by helping their attorney build the best possible defense case.

If you have settled a malpractice claim or lost at trial, your hospital or insurance company will likely be required to report the result to the National Practitioner Data Bank. Discuss with your defense attorney whether you are required to report the result anywhere else, such as to hospitals where you are credentialed, other insurance companies, or your state medical board.

It is hoped that you will be among the majority of pediatricians who are never sued over the course of your career. Pediatricians would be well advised to make the time and effort to lessen the likelihood of a lawsuit by documenting visits thoroughly, seeking advice from specialists as appropriate, and ordering appropriate diagnostic tests and studies to facilitate diagnosis. Most importantly, establishing a trusting relationship with parents and patients is the best medicine to reduce your likelihood of a malpractice suit.

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Pediatricians are less likely than other specialties to be sued, but when losing or settling a suit, their payouts are among the highest. Here’s what to expect if you get sued.

John Rusher, MD, JD, FAAP

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