Medical liability defense attorney Michael J. Sacopulos often
hears physicians speak in hindsight about signs they overlooked in
patients that foreshadowed a coming claim.
In one such case, a plastic surgeon recalled a patient who
wanted an unnecessary skin treatment. She complained about nearly
every doctor she had seen previously.
"The warning sign was that the patient was unhappy with all the
care she had received. Nobody was going to satisfy this patient,"
said Sacopulos, chief executive officer for the Medical Risk
Institute in Terre Haute, Ind. The institute counsels health
professionals on understanding and reducing litigation risks.
After being sued, the doctor said, "Here I was just trying to
improve things, but I should have listened to what I was hearing
[and saw] that I would be the next physician" she was unhappy with,
Figuring out which patients are likely to sue is not easy.
Lawsuits frequently are filed without warning and can blindside
physicians. But legal experts say some patients are more prone to
sue than others. Taking proactive approaches with such patients and
learning how to address litigation-prone behavior can reduce
doctors' legal risks.
"There are individuals in society where it doesn't matter what
happens to them; they're going to look the other way," said Gerald
B. Hickson, MD, director of the Center for Patient and Professional
Advocacy at Vanderbilt University School of Medicine in Nashville,
Tenn. "Then there's going to be a subset of individuals who are
more likely to sue than others. There are individuals who walk in
and are ready to be unhappy. That's a reality, but that's part of
the human condition."
Recent data have dispelled misconceptions about what type of
patients commonly sue, said Richard Roberts, MD, president of the
World Organization of Family Doctors and past president of the
American Academy of Family Physicians. A May 2012 study in Clinical
Orthopaedics and Related Research found that poor people are less
likely to sue their doctors than wealthier patients. Researchers
examined medical and social literature about differences in
litigation rates and related medical liability claims among
socioeconomically disadvantaged patients. They found that
low-income patients tend to sue physicians less often, probably
because of lack of access to legal resources, according to the
People who have higher social statuses, live in urban areas and
have higher education also are more likely to file claims,
Sacopulos said. Another contributing factor is whether the patient
personally knows a doctor or attorney, adds Mark Horgan, senior
vice president for claims at CRICO, a professional medical
liability insurer in Massachusetts.
"That seems to enhance the risk," Horgan said. "You would think
it would make for a more rational conversation after an event, but
there are some occasions where clinicians are really critical of
An American Medical Association analysis of 2011 Physician
Insurers Assn. of America data found that of 10,425 closed claims,
65% were dropped, dismissed or withdrawn, while just under a
quarter resulted in settlements. Of the 8% that went to trial, 90%
of those claims ended in a doctor's favor, the AMA analysis
In 2011, the average expense payment was $49,756, an increase of
5% from 2010. Expense payments include bills paid to attorneys,
expert witnesses and other defense costs. A January study in Health
Affairs found that the average physician spends nearly 11% of his
or her career with an unresolved medical liability claim.
"I don't think the majority of lawsuits are filed because the
patient is litigious, but there's no question that doctors are sued
by some patients for pretty frivolous things," said Joseph E.
Scherger, MD, MPH, vice president for primary care at Eisenhower
Medical Center in Rancho Mirage, Calif. "The trouble is if a
lawsuit is ever filed, the doctor has that on their record, even if
the case is dismissed."
Patients' behavior can be a telling sign of whether they are apt
to sue. If people beg for a procedure or demand treatments, that
should raise a red flag, said Dr. Scherger, co-contributor of a
2011 video presentation called "The Legal Risk Patient" posted on
the website of QuantiaMD, an online physician learning
"Now more than ever before, patients are well-informed, and
[there] is more shared decision-making" among doctors and patients,
he said. "But the patient who is very demanding about what they
want and expect you to give them, 'or else,' puts you on
Other legally risky behaviors include patients who ask for a
diagnosis beyond a physician's expertise, who complain about being
"mistreated" by other doctors or who have sued past physicians,
according to the QuantiaMD presentation. Although it is unlikely
that a doctor will know if a patient has been litigious in the
past, some patients volunteer this information to new physicians,
Dr. Scherger said.
But the fact that a patient has sued another physician does not
necessarily mean a doctor should not accept him or her as a
patient, said Horgan, of CRICO.
"You don't really know what the circumstances were, and that
patient may have had every reason to sue, but if it's happened more
than once, that would concern me," he said. "Before I would refuse
a patient, I would talk to my risk manager or insurance
Patients who have sued a physician's partners or co-workers, on
the other hand, should be treated with extreme caution, legal
experts said. A 2011 QuantiaMD survey of 3,000 health professionals
found that nearly half of respondents would consult with an
attorney before accepting a patient who had sued a partner.
Twenty-six percent of respondents would dismiss the patient from
the practice, 27% would accept the patient, and 10% would agree to
treat only if the patient underwent a psychiatric examination. Five
percent would accept the patient if he or she signed a contract
promising not to sue.
"Obviously, the doctor has some ethical duties" to make sure the
person receives proper care, Sacopulos said. "But it is not a good
idea to see people who have sued someone in the practice. You have
to think you're part of a unit. If they've sued your partner,
whether or not they would ever sue you, it certainly puts people in
an awkward position."
Like most doctors, Dr. Scherger has treated patients who
complained to him about past physicians. During interactions with
such patients, he is diligent about ensuring that they understand
the details of his diagnosis and treatment, he said.
"I spend a lot of time explaining things," he said. "I think
your communications skills are really tested."
Being available to patients and communicating with them at all
times can lower a doctor's liability while strengthening the
doctor-patient relationship, said Dr. Hickson, of Vanderbilt
University School of Medicine.
"A physician can't work 24/7, but they must practice in a way
where the doctor and [his or her] colleagues are able to provide
seamless coverage," he said. There is no "greater stress among
patients and families than uncertainties."
Dr. Hickson added that physicians also should work to curb
"doctor jousting," in which one physician judges another doctor's
treatment and makes negative remarks to patients. Such encounters
can encourage patients to sue the physician being criticized.
"I'm not saying, I want medical professionals to maintain a code
of silence, but it is those offhand comments, the unthoughtful
comments, the comment without all the data that is so destructive,"
he said. "Before you make disparaging comments, ask yourself, 'Do
you really know all the medical facts?' "
If a patient continues to be dissatisfied with a physician, it
may be time to end the relationship, medical experts say. In such
cases, physicians should make sure to follow ethical guidelines to
prevent a potential claim of "abandonment," Dr. Roberts said.
American Medical Association ethical policy states that a
physician is under both ethical and legal obligations to provide
services as long as a patient needs them. A termination generally
should be communicated verbally to the patient and with a letter
outlining the reasons for the dissolution, the policy says.
Physicians who sense that a claim is coming should waste no time
in consulting with their attorney or professional liability
insurer, said Karen Kelly, vice president of claims operations for
The Doctors Company, a physician-owned medical liability insurer.
Potential indications of a suit include receiving a subpoena or a
request for medical records, or experiencing an unexpected or
unfortunate outcome in which a patient is upset.
"After a physician contacts the carrier, patient safety and/or
claims experts may then be able to provide further assistance or
guidance that may reduce the severity of a loss and possibly
prevent a lawsuit," she said. "In addition, most policies have a
clause that requires physicians to notify the company of all claims
in a timely fashion."