Medscape Business of Medicine

Crazy, Scary Reasons Why Patients Sue

Neil Chesanow

September 10, 2013

 'Doctor, You Made Me Shoot Myself'

It's distressing enough to be sued for malpractice when you've actually done something wrong or a possibly preventable medical error has occurred. At least these are lawsuits you generally can see coming.

But it's particularly upsetting and stressful to be named in a lawsuit without a hint of warning, like a shot out of the blue -- so totally unexpected, so shockingly random.

The coup de grace is when the reason for the complaint is something crazy, illogical, strange, or inexplicable, even when you try to understand the logic.

Take James R. Henry, MD, 62, who is board certified in emergency medicine but is practicing as a primary care physician in Manahawkin, New Jersey. In 2008, Henry was sued for a reason that he couldn't possibly have seen coming, the rationale for which -- to put it politely -- begs belief.

In 2006, patient Robert Buck came to see Dr. Henry, complaining of insomnia and depression. Henry prescribed the selective serotonin reuptake inhibitor sertraline for the patient's depression and zolpidem for his insomnia.

According to the complaint, a month later, Buck, after having taken zolpidem, fell asleep in a chair at home while cleaning his .38-caliber Colt revolver. He says that he then awoke in a disoriented state, heard a telephone ringing, and thought he was reaching for the receiver with his left hand. In the process, the gun in his right hand somehow ended up in his mouth, whereupon he pulled the trigger.

Buck miraculously lived. He then sued Henry for medical malpractice for prescribing the zolpidem that, he alleged, made him shoot himself in the face. It was alleged that Henry "deviated from accepted medical standards when he prescribed the sleep medication," court documents state.

It is just this sort of out-of-nowhere lawsuit that doctors especially dread. Many nerve-racking suits, like this one, are unavoidable, although sometimes justice triumphs -- or at least staggers over the finish line -- in the end.

Henry, for example, eventually won his case (on a technicality; he was never exonerated), over 5 years later. His name had been dragged through the newspapers, patients had asked him about the case, and his competence as a physician had been questioned at trial. "It's not something I will soon forget," he says.

What Did the Doctor Do Wrong? 'Yabadabadaba'

Malpractice attorneys readily acknowledge that some complaints brought by patients are completely unpredictable and seem just plain nuts.

"There are people who sue over nothing," James Griffith, JD, an attorney at Fox Rothschild in Philadelphia, is the first to admit. "You say, 'Tell me what the doctor did wrong,' and then you hear all this yabadabadaba stuff. 'Well, he should have told me that I could have a scar.'

"I said, 'A doctor has to tell you that if you have surgery you could have a scar? Did you ever cut yourself? Did you have a scar from that?' 'Well, yeah.' 'Well, then, you know what scars are like, right?'"

Griffith once took the deposition of a woman who wanted to sue a plastic surgeon for a breast reduction he performed. The surgeon was Griffith's client.

"I asked her, 'Why do you want to sue the doctor?'" Griffith recalls. "She said, 'Because he forgot to put my nipples back on.' 'And when did you make this discovery?'" Griffith asked. "'I was taking a shower,' she said. 'How long after the surgery was this shower?' 'About a year.'"

Griffith looked at her. "Are you telling me that this was the first shower you had taken in a year that you noticed this?"

"I usually take showers in the dark," the woman replied.

The Truth About Why the Baby Died

Malpractice attorneys contend that although some crazy cases are truly crazy, others are perhaps only crazy-seeming, at least to the physicians involved. And they may not be crazy at all. Common reasons that patients seek legal representation may in fact be problems on the part of doctors, other providers, or their institutions, that often can be avoided, the lawyers maintain.

Failure to communicate with and show compassion for a patient (or the patient's family) after an adverse event ranks high on the list.

"An infant died in the hospital," offers Griffith by way of example. "The parents were never told why. I started to take the deposition of the father, and it was obvious to me that he was a decent guy. He just wanted to know why his daughter died.

"I stopped the deposition and said, 'I'm going to tell you what I know,'" Griffith recalls, moved. "'What happened is that they had 2 types of baby formula in the same refrigerator. The nurse grabbed the wrong one and gave it to the baby, who developed DIC [disseminated intravascular coagulation] and died. The nurse went into complete meltdown and was in psychiatric care over what happened.'

"I told him the whole thing right up front," Griffith says. "He cried. His wife cried. I had to fight to control myself too. So I said, 'Let's stop the deposition. I want you to think about this. I'll get you whatever records you need.' And I gave them all the records.

"The father came back with his lawyer 2 weeks later and said they had talked about it. He realized that it was a mistake, that the nurse didn't mean to do it. They were deciding what to do. I said, 'I'll tell you what I'm going to do. I'm going to get the hospital to put up enough money so that your other daughter can go to college. And I'll get a plaque put up in the pediatric nurses' station with your daughter's name on it.' The hospital subsequently agreed to sponsor an annual lecture in her name on how to avoid these kinds of accidents.

"The father said, 'Boy, if someone had told me all this at the beginning, we would never be here,'" Griffith remembers. "To this day," he says, "the hospital still has the plaque up, and they still have an annual lecture for their nurses.

"A little kind, caring conversation could have gone a long way in avoiding a lawsuit and a year of mental anguish for these parents," Griffith concludes.

When an Invalid Claim Masks Another Valid One

A common lawsuit that may seem to materialize out of nowhere is when a patient seeks legal redress for being disrespected by the medical staff. The lawyer deems it not a suable offense, but then it turns out that, as a result of the patient having been stereotyped, a valid clinical claim is uncovered.

Armand Leone, Jr, MD, JD, MBA, a partner in Britcher, Leone & Roth in Glen Rock, New Jersey, terms this "representative bias": when a physician or other provider shows bias against a patient because of age, gender, race, physical appearance, or other traits, and as a result fails to accurately diagnose and properly treat the patient.

Leone described a case in which a woman was found unconscious on the floor of her home, her leg folded beneath her. An ambulance rushed her to the emergency department of a local hospital, where the staff took one look at her -- heavily tattooed, numerous facial piercings, and completely out of it -- and saw right away what they believed the problem was, because they saw it every day: a drug overdose. She was given naloxone, an opioid reversal agent.

There was just one problem: She may have looked like a drug addict, but she wasn't a drug addict; she had passed out after taking zolpidem, for which she had a prescription. "The woman and her husband came to us all upset," Leone recalls. "They said, 'They ignored us at the hospital and treated us like drug addicts, and we're not.'" They were indignant, humiliated, and seeking revenge.

But disrespectful treatment isn't enough to warrant a claim, Leone points out. However, as a result of lying on her leg for an extended period, the woman had developed compression ischemia compartment syndrome. Because she had been deemed a drug addict, she had not been given a complete workup and had not been diagnosed nor treated for a potentially life-threatening condition.

"The attitude of the physician who treated this patient like a drug addict got her and her husband upset," says Leone, "so they came to us looking for a lawsuit for A, but there was really a claim for B."

This is how malpractice suits can occur, Leone says: "A patient gets angry over abrupt, discourteous, or insulting treatment by a doctor. That in itself doesn’t create a claim in the eyes of the law, but it causes her to go see an attorney,” where a different, bona fide claim may bubble to the surface.

The Cattle Call Lawsuit

In Medscape's 2013 Malpractice Report, in which nearly 3500 physicians participated, of whom approximately 1400 had been sued, perhaps the most baffling and distressing complaint is the one in which a doctor is named as a defendant even though the doctor had little or nothing to do with the patient, and may not even have known about the patient's complaint that led to an allegation of malpractice.

In many such cases, the doctor in question is not named alone; he or she has plenty of company. It's like a cattle call: It may seem as though every doctor who interacted with the patient at or around the time of the alleged malpractice is named in the suit. Which is exactly what happens.

What's going on? How can plaintiff attorneys get away with such seemingly indiscriminate suing? The answer is: They may have no choice.

Welcome to the problem of the "empty chair."

In a common scenario, the patient waits until the last minute before the statute of limitations runs out to file a lawsuit, Griffith explains. The patient can't remember all the doctors and nurses involved in his or her care at the time of the alleged malpractice. The patient's attorney then combs through the patient record, looking for the names of providers who interacted with the patient in any capacity whatsoever. Because the clock is ticking, the plaintiff attorney has no choice but to name every possible doctor involved and then sort things out later during discovery, when truly uninvolved doctors may be dismissed from the suit.

In another example, "I'm an assistant surgeon," hypothesizes Leone. "My boss says, 'I need you to help me scrub on this case.' It's removal of a neuroma. So, I scrub in, I go to the OR, I hold the retractors, the case is done.

"Well, it turns out that something went wrong with the surgery," Leone continues. "The attending surgeon gets named, and we have to name the assistant surgeon as well, because of the problem of the empty chair. Even though you may know that the assistant did nothing more than hold retractors and made no decisions as to what to take out and what not to take out, if he isn't named, then at trial the attending could point to the assistant who was in the surgery, but not named as a defendant, and say, 'Well, he could have pulled the retractors too tight. He could have done this, he could have done that. I didn't see everything that he was doing. I was busy looking at my part.'

"So, there were 2 people in the operating room, but at trial only one of those surgeons is sitting in the defendant's seat," Leone says. "You have an empty defendant chair. As such, as is appropriate, defense counsel tries to push off as much liability -- bring as much blame -- as possible onto the defendant who is not there. So, we have to bring all the doctors in and then get them out. We can't not bring them in, because later on, when the defendant tries to throw mud their way, you often can't bring them in because the statute of limitations is running out, which in my state, New Jersey, is 2 years from the date of discovery of negligence from a reasonable person's perspective."

Ironically, Leone adds, the problem of the empty chair doesn't just drive doctors up the wall. Attorneys, insurers, and judges hate it too, because it's costly, time-consuming, and inefficient. However, if a plaintiff attorney permits an empty chair in court by failing to name a legitimate defendant, and as a result loses the case, it's the attorney who could be sued for malpractice by his client, the patient.

When the Patient Fails to Follow Instructions

High on the list of outrages in Medscape's 2013 Malpractice Report were patients who sued their doctors for bad outcomes after failing to follow the doctor's advice.

"The patient did not comply with an order to see a radiologist," one respondent wrote. "We did not realize she didn't go, so our attorney said we should not go to court, as a jury would be sympathetic to her despite her own detrimental actions."

"This was an issue with communication, and the patient was lost to follow-up," another doctor explained. "He didn't actually communicate with me at a later date either, when most patients would have called."

And a third doctor opined, "I felt the patient was responsible. He did not take my advice."

Unfortunately, according to the Institute of Medicine, nearly one half of all adults in the United States -- 90 million people -- have trouble understanding what the doctor tells them about why they are sick and how to comply with their medication regimens.[1] Studies show that among patients with limited literacy skills -- and these may include affluent, educated patients as well as indigent ones -- 26% do not understand when their next appointment is scheduled, 42% do not understand instructions to "take medication on an empty stomach," and up to 78% misinterpret warnings on prescription labels.[2]

So, when a doctor says, "I felt the patient was responsible; he did not take my advice," a fundamental question inevitably arises: Was the advice clear to the patient as well as to the doctor? Or was it only the doctor's perception that instructions were clear? Did the doctor do anything to check?

44 Tablespoons of Salt

"It's amazing about doctors' instructions," Griffith observes. "Doctors always seem to recall spending a great deal of time on instructions, yet the patient says he was never told anything by the doctor. The only person who discussed anything with him was a nurse, and he didn't know what she was talking about."

Griffith remembers one case in which "the doctor told the patient that she had to have an enema before coming in. The instructions were to mix one quarter of a tablespoon of salt in a quart of water and use that for the enema. What the doctor intended to write was one-slash-four, but if you just looked at the face of it, it sure looked like 44. So the patient mixed 44 tablespoons of salt in a quart of water for the enema," risking serious injury because the doctor's handwriting wasn't clear.

"Doctors always think their instructions are crystal clear," Griffith observes. "But what matters is: What does the patient hear? After you get done with your instructions, the best way to find out is to ask the patient, 'What did I just say to you? Tell me what you understood from what I just said.' If the patient repeats it back correctly, you can say, 'Exactly right.' Now you've reinforced it in the patient's mind."

The Patient Who Smells Like Trouble

A number of Medscape survey respondents who were sued for malpractice smelled trouble right from the start.

"The patient had already been involved in several other lawsuits," one doctor wrote.

"The family was known to be extremely litigious," another doctor observed.

"The patient wanted to sue, not get treatment, from the outset," a third doctor said.

"I'll never forget the day a guy came to my office to see me without an appointment, and the receptionist says, 'You better get out here,'" Griffith recalls. "So I go out to see him. He's sitting there wearing a hat, and I could see sticking out from beneath the hat was aluminum foil. So I said, 'What's with the hat?' He says, 'Well, that's why I'm here. The FBI has directed microwaves at my brain so they could read my mind before I do something.' I said, 'Really. That sounds like a medical problem, not a legal problem. Thank you for coming in.'"

"Now, the nut cases are not always that obvious," Griffith admits. "You have to trust your instincts. But the law is crystal clear: You are not obliged to accept every patient, absent an emergency situation, and if you get bad vibes when you first meet a patient, for whatever reason, tell that person you don't think you can help him, give him the time he needs, and get him out the door."

One giveaway that a patient is a lawsuit waiting to happen is when she gives you a lengthy history of doctors who didn't listen to her, didn't help her, and so on, Griffith says. "If you just want to be the next one on her long list of incompetent, uncaring doctors, well, go ahead and accept her as a patient," he adds. "But if the best doctors couldn't cure her before, put your ego aside, assume you won't be able to help her either, and get her out of the office."