What to do if you’re involved in a medical malpractice lawsuit [PODCAST]

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“The worry and anticipation of getting sued are heightened more than ever in the wake of the pandemic. It is in all physicians’ minds. I recently did a quick poll in some of my physician groups on social media, and roughly 500 physicians responded to this question: Do we need medical malpractice reform? I only had one say no, and one said it would depend. Every other physician said yes. Now, this is a small group, but I believe asking this on a larger scale would get similar results – the majority would want this. We desperately need to change, but change takes time and debate. So, what can we do now in this pandemic to avoid litigation?”

Laura Fortner is an obstetrician-gynecologist.

She shares her story and discusses her KevinMD article, “Avoiding medical malpractice in the wake of the pandemic.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Rate and review the show at KevinMD.com/rate. Subscribe at KevinMD.com/follow. Today on the show, we have Laura Fortner. She is an obstetrician-gynecologist, and her KevinMD article is titled “Avoiding medical malpractice in the wake of the pandemic.” Laura, welcome to the show.

Laura Fortner: Thanks for having me. I’m excited to be here.

Kevin Pho: We’ll get into the article in a little bit. First off, briefly share your story and journey to where you are today.

Laura Fortner: So I’m a board-certified OB/GYN. I’ve had over 21 years of experience, and I love what I do in terms of that. But I was hit with a medical malpractice suit about 10 years ago, and it really shook me to my core. It crushed me. I didn’t realize how much that really affects physicians in general. We really mix up who we are with what we do, and so we take this very deeply personally.

Through that journey of healing, I have been able to create a life that I love, and not only get the joy back in medicine and my confidence back in medicine, but also help others overcome medical malpractice.

Kevin Pho: So take us deeper into that story. So you said it happened about 10 years ago. What were you doing when you first heard about this lawsuit, and was it an expected event?

Laura Fortner: Yeah, such a great question. Back in ’04, the parents came and got medical records for this child that I had delivered back in ’01. It was definitely out of the blue. I really didn’t think anything of it. And then, fast-forward 10 years later, they served me with papers on medical malpractice.

Actually, what I was doing was, it was right after the holidays. I was sitting with my kids playing games in my home, and the sheriff came to my door. My three little children at the time and I, we all answered the door together, and it was really a shock. At that moment, of course, all the emotions flood in. I had enough gumption to sit my kids in front of the TV, and I went and closed the door in my bedroom and just sobbed, because it was really such a traumatic event in terms of the unknown, the timing of it, just everything.

And it really makes you as a physician start to doubt: Is this really something that you are meant to do? Do you know what you’re doing? All the thoughts start creeping in, the self-doubt, the second-guessing, and so that sort of started it. Through the process, now medical malpractice cases last almost five years to close from when they start, so it’s such a long journey, ups and downs, roller coasters.

What I found during this time is there are no resources for physicians. Yes, there’s traditional therapy, but many of us don’t want to do that because of the questions on our hospital privileges and the applications that we fill out. Many of us don’t want to do those things. I really didn’t have a resource to go to, someone to talk to, someone to help with my journey. There’s a big gap in that, and that’s what I’m filling today.

Kevin Pho: So when you were experiencing this event, you said that you had no one to turn to. So in general, what happened next? Who guided you at all through that process?

Laura Fortner: Yeah, so let’s talk about that. When something like this happens with a physician, the first thing you do is you call your insurance company, and then they assign you a lawyer, and then you talk to your lawyer. Now, those people are great at what they want to achieve in this, right? But they’re not an advocate for the physician in terms of their emotional distress. They are for winning the case, and how they’re going to do that, and strategy, and all those things. But in terms of the emotional toll it takes, they’re really not the people to help you through that.

What they say right away when you call them is, “You can’t talk about this case.” We as physicians take this so literally, Kevin. What we need to do instead is realize that what they’re saying is you can’t talk about the chart, what’s in the chart, the details. But you can talk about how it’s affecting you and what’s happening with you, and go get help to help you overcome that and be able to have peace of mind and joy even during the process, because the process is going to take a long time.

Kevin Pho: And you talk more about next steps and what you’ve learned from this event in the KevinMD article titled “Avoiding medical malpractice in the wake of the pandemic.” So you’ve clearly learned a lot from this experience. What kind of tips and advice can you share that you wrote about in the article?

Laura Fortner: Yeah, so in a lot of the article, I did write in the beginning about how to avoid litigation, and I use “avoid” as an acronym and I kind of go through it. It’s great advice in terms of how to avoid it. But the reality is most of us in high-risk specialties, and even lower-risk specialties, have a very high chance of getting sued in our career. The stats are 75 percent for low-risk specialties and 99 percent for high-risk specialties.

So it’s normal. What I’m trying to do is normalize the conversation, because it is normal. It is normal to be sued. It’s normal to feel the feelings that we have, with anger, shame, self-doubt, lack of confidence. All those things are very normal to happen. It’s what you do with those things: if you want to sit and spend the entire time, or you want to change that.

So most of the article is about the preventative side, which is what most of us get in terms of our coursework, right? We get a lot of preventative coursework in our world for CME, but then we don’t get any coursework on, when this happens, what do we do next? And that’s sort of the gap.

Kevin Pho: All right, so you use “avoid” as an acronym that kind of summarizes those five steps. So let’s get into each one of those and kind of explain what they mean.

Laura Fortner: Yeah, so A is attitude. The thing is showing your attitude in a really good way. It’s really about what the patients perceive, and attitude is everything. Communication is everything, and we all know this from all the research. The number one reason why people sue us is because they felt like we were dishonest, or there was a secret we were hiding, or we weren’t telling the full story. And so really, that attitude, and giving that to patients, is really making sure that you’re in a state of mind where your compassion is showing, and empathy, right?

And V is valuing their perspective, valuing the patient’s perspective, sitting in their shoes. If something happened in the office that they were unaware of that perhaps made them angry or frustrated, right, and then your nurse comes and tells you this person is frustrated because of what just happened outside, or whatever, I want you to sit in their shoes before you walk in, to give them compassion and feel where they’re coming from. If there’s a complication in surgery, same thing. It’s very important to show your empathy. And listening is probably the best advice I could give you: listening more than you talk. Patients just want to feel heard most of the time.

The O stands for operate in systems. What I mean by that is everything has a system in your office. It doesn’t look messy. When things are messy and miscommunication happens, if you’re doing telephone calls back to patients all in different ways, it doesn’t look so hot. If it’s the same way, documented the same way, and you have an itemized list of what to ask for, those kinds of things, that is a system. You want a system for everything: a system for instructions, a system for how you get informed consent from somebody for surgery. All that needs to be in place and system-oriented in your office.

The I is initiate self-care. This is so important for us as physicians. We take care of people; that’s what we love to do. We love to help people. We do that at the expense of ourselves. Most of us sacrifice our time and our home life for what we do, and we do not take care of ourselves. A happy physician, a physician with really good self-care, is a way better physician for patients. It just goes both ways, right?

And then D, of course, is document, document, document, and document clearly. I think that’s the best advice I could give you, because especially with Epic and the EMR systems out there and the timed processes, they can now track every time you go into a chart. They can actually now track every time that you look up an UpToDate article in the hospital with your ID.

What I’m saying about this is, if something happens and you get served, the worst thing you could do is go into the chart and start looking up articles and start looking up what happened. Do not do any of that, none of it. Talk to your lawyer. Wait until you get the chart with the lawyer. It is so important right now, because they use that against you in the system. And it’s unfortunate, because many of us just care so much. We want to know what happened, right? We’re not looking at it in that way, but they can twist it that way. So it’s very important, because everything is timed now.

Kevin Pho: So let’s normalize the conversation about malpractice and liability, because you said, and the statistics back it up, that the majority of clinicians will get sued at some time during their professional career. So once they make that call to the malpractice insurance carrier, and then the carrier says, “Don’t talk about the case. Our lawyers are on it,” but sometimes the malpractice insurer’s best interests aren’t necessarily aligned with yours, after doing that, what’s the next thing that physicians should do?

Laura Fortner: Yeah, I really believe the next thing is they should go find somebody to go mentor them, or who has been through it before, to be able to talk to them. I actually have come up with a whole process and a unique system to take physicians through all the steps of the necessary things that I went through. I mean, my case was extra long. It lasted almost 10 years. That’s not normal; again, cases are normally five years. But I went through every process of the legal gamut.

And so I think what really helps us as physicians is being prepared, knowing ahead of time what’s going to happen. I think that one of the biggest problems is the fear of the unknown. We get fear of what it means for our jobs, career, income loss, and reputation. And we also have this shame that we walk around with, because now we think maybe we’re not as good as we thought we were.

Kevin Pho: So once we find this mentor, someone to commiserate or talk with, what kind of questions should we be asking this mentor?

Laura Fortner: Yeah, and for what’s next, and how do I get through it? And then I believe they need to really find somebody. I mean, I’ve been certified in life coaching and trauma-informed coaching, and I think that some of those tools are so valuable in this situation. Because we are human beings that think we can just get over it. Yeah, that’s what physicians do. We just have to get over it and go to the next room.

But when something like this happens, this is a deep, deep, inside, personal wound that just festers. It keeps coming up every time there’s communication with the lawyer, and then maybe it will abate for a while, and then it’ll come back up again, right? And so it’s something that you can absolutely have. You can still step into your greatness, still be that confident doc, and still have that joy even while this is going on. But most of us are not taught how to do it.

Kevin Pho: We’re talking to Laura Fortner. She’s an obstetrician-gynecologist, and we’re talking about her latest KevinMD article titled “Avoiding medical malpractice in the wake of the pandemic.” Laura, like you said, this whole process is a big unknown, and that generates a lot of fear among physicians. Now, what are some of the biggest misperceptions or misconceptions that physicians have about the malpractice process that you want to kind of clear up, having unfortunately gone through the process yourself?

Laura Fortner: Yeah, I think, well, again, the biggest: It’s necessary to heal and grow through it to be able to be on top. OK, so that’s probably the biggest one, “You can’t talk about it.”

The other one is we feel isolated, that no one else is going through the same thing. This is a huge misconception. Think about the stats: 75 percent for low-risk and 99 percent for high-risk specialties. We’re all walking around with a case, or have had a case, or an adverse event that we fear is going to be a case, right? We’re all walking around feeling the same way, but none of us are talking right now.

And my job, and this is one of the things I’m doing, is creating a community where we are coming together to normalize this, because this is normal. Unfortunately, the other professions in our world, right, like accountants and insurance companies and all corporations, they all get sued, but it’s money, right? They don’t have the same sort of personal injury that we have. And so it’s something where we need to be advocates for ourselves in this arena and normalize this.

And it’s funny, because when I give these talks, what will happen is people will come to me and be like, “I got sued,” “I got sued,” “I got sued.” It sort of just then spirals, and it makes people even feel better to be able to share that. It’s normal. It doesn’t mean you’re a bad doc. And that’s where the problem is, I think, in our culture of medicine. When we grow up in residency, and beyond, we are made to feel like we have to be this perfect person, and if there’s a mistake, there’s a problem. And even in a lot of these cases, there are no mistakes, Kevin, right? But it doesn’t matter, because then we still feel like maybe we’re not so great, right? And so it’s really knowing that, and not making it mean anything, that is really the key.

Kevin Pho: So when a physician is sued, like you said, it’s clearly a life-transformative event, and it can go in one of two directions, of course, right? It can be a negative event; it could destroy a physician. But you’ve turned it into an event where it’s clearly changed you for the better, and you’re using that experience to help other health care professionals out there. So talk about this event that happened 10 years ago. How did that transform your life?

Laura Fortner: Yeah, I always say this: I let my setbacks be my comebacks. And it takes a while. I mean, it took me a while. I did sit in this stuff, being stuck and unhappy, for so long. When I finally learned I could take my own power back, everything transformed for me. And what I realized is then I had friends asking me to help them get through it, because they were going through it, and I’m like, “Of course I’m going to help you.”

Through that process, I just realized that this is so needed. This is such a passion of mine. It’s something that I think is the rest of my life’s work. I want to advocate for this. I want us in medicine to feel safe in this arena. And the unfortunate part of this is, depending on where you live depends on how much safety you have, which to me is ridiculous, when we all abide by the American College of our boards and our specialties, but yet we’re judged differently depending on which state we live in. That makes no sense, right? We’re all practicing the standard of care. So it’s just really unsettling to me, and I feel like there needs to be change. Somebody needs to advocate for us. I don’t know that we have that to an extent, and I just feel led. I just feel like God’s given me a purpose in this.

Kevin Pho: And my final question: What are some of your take-home messages that you want to leave with the KevinMD audience?

Laura Fortner: Yeah, I think the biggest thing is I want your audience to understand it’s OK to be sued. It’s normal to be sued, and you’re not alone. The best thing you could do is reach out and get help in any way, shape, or form, whatever that looks like. So thank you so much for letting me be on the podcast. I knew it was quick. It was fast, and I really appreciate it.

Kevin Pho: Laura, thank you so much for sharing your story, time, and insight, and thanks again for being on the show.

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