The Best Defense is Cooperation and Support
Last summer, David Sugarbaker, MD, chief of Thoracic Surgery, found himself as a defendant in a medical malpractice trial. The months of working with his attorneys to prepare his defense and more than four weeks in court proved to be an emotional roller coaster for Sugarbaker.
“A trial is so different than what we try and do as physicians—building trusting relationships with our patients while helping them get better,” Sugarbaker said. “It can be a time of confusion and self doubt.”
Sugarbaker, who ultimately won the suit that alleged a post-operative stroke was caused by a drug he prescribed, and a handful of other BWH physicians who have been sued have come together to support fellow physicians who may find themselves as defendants. This is part of a broad, supportive program that BWH and CRICO/RMF, the liability insurance carrier serving the Harvard medical community, now provide to clinicians.
“We know from speaking with clinicians who have been sued how traumatic and stressful the experience can be,” said Janet Barnes, JD, RN, BWH’s executive director of Clinical Compliance and Risk Management.
In addition to Sugarbaker, several veteran BWH physicians make themselves available to speak informally with clinicians suddenly thrust into being defendants. This group includes Chief Medical Officer Andy Whittemore, MD; cardiologist Gilbert Mudge, MD; David Acker, MD, and Julie Miner, MD, of Obstetrics and Gynecology; Alyssa Goldberg, MD, of the Department of Medicine; and Michael Wilson, MD, of Orthopedic Surgery.
The path for a law suit can take at least three years or longer. Typically, the Risk Management Department is notified of the lawsuit first and in turn, contacts the physician, as well as the physician’s chief and the hospital’s chief medical officer. Whittemore sends that physician a letter, too, offering him or her support. Risk Management then forwards the lawsuit to CRICO.
Defendant physicians always have been instructed not to talk about their case. However, defendants are encouraged to talk about their emotions and feelings of frustration around the case with family and colleagues. That’s where a conversation with a colleague who has been through it before can be helpful.
In Sugarbaker’s case, he worked very closely with his defense team to prepare for trial. They discussed and reviewed every element of the case and even visited the courtroom prior to the trial. CRICO defense teams also stage mock trials and jury studies as part of defense preparations.
CRICO has a very strong record of success in defending member clinicians against complaints, and there has been an industry-wide downward trend in the number of medical malpractice complaints filed during the last few years, according to Beth Cushing, JD, of CRICO/RMF. With CRICO cases, approximately 55 percent of complaints are dropped or dismissed without payment; approximately 30 percent of claims are settled before a trial; and of the approximately 15 percent of complaints that are contested at trial or in arbitration, CRICO and BWH defendants win nine out of 10 times.
CRICO does not weigh the costs when determining whether to defend a clinician’s care. “We base our decisions on whether the care was appropriate and supported by experts in the field,” Cushing said.
More information is available online at www.rmf.harvard.edu/