A shoe-in for malpractice - Curbside Consultation - caring for patients involved in malpractice lawsuits

American Family Physician,  August 1, 2003  by Richard G. Roberts

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Case Scenario

Several months ago, I delivered a 36-week fetus with intrauterine demise. There had been no complications during the pregnancy, and the death was completely unexpected. I thought that I had been on good terms with my patient throughout her pregnancy and had been involved in all aspects of her prenatal care. Nonetheless, six weeks after the tragic event, I received a letter from an attorney stating that he had been retained to investigate the death. I heard nothing more on the matter until recently when this patient showed up for an appointment.

She is pregnant again and wants me to continue to be her physician. When I asked her if the suit was proceeding, she admitted that it was. "Then how can you want me to be your physician?" I asked. "It's not me who wants the suit," she said, a little tearfully, "it's my family. I still want you to be my doctor." Because I feel comfortable that the intrauterine fetal demise was not related to any lapse in my care, I am inclined to be willing to continue as her physician. Needless to say, I am a little edgy about future adverse outcomes. Is there a conflict of interest if I resume her obstetric care? What risk-management issues should I be aware of? Does it make sense for me to continue to care for this patient?

Commentary

The questions being asked in this case scenario can be consolidated into one, "Should I continue as this patient's physician?" An attorney's typical answer to such a query is often a cautious "It depends." In this case, a more definite answer is appropriate: "No."

Returning to the first of this physician's three questions, conflict of interest is an unlikely issue in this case. Usual conflicts of interest involve situations in which one party is potentially advantaged at the expense of another party. An example of such a conflict would be a physician who refers a patient for an unnecessary magnetic resonance image at a facility in which the physician has an undisclosed ownership interest. A conflict exists between the doctor's interests (seeking financial gain) and the patient's interest (seeking appropriate care). In this case, however, the physician and the patient presumably have aligned and common interests--they both want the best possible medical outcome for the patient and the infant. On the other hand, if the physician's intention in continuing to care for her would be to persuade her to drop, or punish her for, her lawsuit, there would indeed be a potential conflict of interest (and probably a need for professional counseling).

The second question pertains to risk management and provides the most compelling reasons for advising that this physician no longer serve this patient. Patients sue physicians for a variety of reasons (1); most often (in 70 percent of cases) they file suit because of communication problems, unwanted outcomes, unmet expectations, or a desire to save others from going through what they experienced. (2) If any of these was this patient's reason for a lawsuit, the physician's inability to communicate effectively with her, to understand her needs, or to promote reasonable expectations on her part is likely to recur.

Sometimes patients sue because of economic need, even when they do not believe the physician was negligent. An example might be the parents of a child born with a handicapping condition who face overwhelming custodial and medical care costs. But, in a case of intrauterine fetal demise, the economic costs are usually negligible and an uncommon motivation for a lawsuit.

Still other patients sue for their pain and suffering. If this was the patient's motive, the physician must come to the difficult and humbling conclusion that his relationship with her was not sufficiently therapeutic to help her cope adequately with her suffering.

In all likelihood, her suit is borne of anger, hurt, and a desire to punish someone. Even if a patient genuinely likes and trusts a physician that she has sued, most lawyers would advise against continuing the physician-patient relationship, not because of an inadequacy on the physician's part, but rather because the patient, having already initiated one lawsuit, will be more likely to sue again in a setting similar to the one that engendered the original suit.

The third question involves the physician's relationship with this patient. Regardless of her motives and her expressed confidence in him, the patient has brought a lawsuit--declaring that she believes and alleges that the physician committed negligence and that the negligence caused her harm. Without those fundamental allegations, she would have no basis for filing a lawsuit. Even if she is able to reconcile the apparent contradiction between pressing a claim against the physician for negligence and continuing to entrust her care to him, the physician would have trouble trusting her.

As her suit plays out, her attorney, expert witnesses, family, and even her own testimony will challenge the physician's competence and commitment to her care. If this physician feels "a little edgy" now about future adverse outcomes, just wait until her litigation is complete!