Proactive risk management: the key to preventing physician burnout and lawsuits [PODCAST]

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Join us in this episode as we delve into the critical issue of physician burnout and its correlation with the threat of lawsuits in the medical field. Our guest, Howard Smith, an obstetrics-gynecology physician, explores the notion that every doctor is at a 5 percent risk of being sued annually and how this inevitability affects their well-being. Howard will guide us through the four steps of risk management and explain how proactive measures can empower doctors in the face of complications. We’ll also discuss the significance of the certified report, a sworn statement prepared by doctors, and its impact on insurance carriers and defense counsel. Discover how risk management offers a tangible solution for both those who believe litigation goes too far and those who feel it falls short. Join us for an eye-opening conversation on physician burnout and the transformative power of risk management in the medical profession.

Howard Smith is an obstetrics-gynecology physician.

He discusses his KevinMD article, “Proactive risk management: a game-changer in preventing physician burnout.”

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Transcript

Kevin Pho: Hi, welcome to the show. Subscribe at kevinmd.com/podcast and get CME for this episode by clicking on the CME link in the show notes. Today we welcome back Howard Smith. He’s an obstetrics-gynecology physician. Today’s KevinMD article is titled “Proactive risk management: a game-changer in preventing physician burnout.” Howard, welcome back to the show.

Howard Smith: Thank you, Kevin. I want to express my appreciation to you for giving me this opportunity to speak to our colleagues on your podcast.

Kevin Pho: Well, thank you so much for coming back on. Now, before we get into your article, just give a brief story and journey to where you are today.

Howard Smith: OK. Until 2010, I was the typical obstetrician-gynecologist. When I started my residency in 1972, I made the commitment to the next generation of humanity. I claimed no accolades or honors. For me, the privilege to have been entrusted with a thousand births was enough.

Then came 2010. I burned out. I burned out because I permitted the risk of medical liability to defeat me. This was the first time in my life that I was defeated by anything. I was still a physician, but no longer practicing obstetrics and gynecology. I abandoned my specialty and surrendered my core competency just because I feared being sued. I threw everything away.

An underlying theme expressed by many contributors and commentators on KevinMD was physician burnout. Lord knows, there are ample stresses, emotional, physical, personal, and professional, for any physician to burn out. The threat of lawsuits is just one. However, I am certain that it always plays a role in the lives of all physicians, including those few who claim to never have been sued. Still, I find no comfort, only to say that I refuse to end my story as just another doctor who burned out.

Kevin Pho: So when you said that you burned out, and one of the reasons was the threat of being sued, just tell me, at that time, about that day-to-day cloud that was hanging over you as you were practicing.

Howard Smith: Sure. Well, I was sued. As a matter of fact, I was sued four times: two times before I conceived of this tool, and two times afterward. Suffice it to say that the difference in outcomes was totally dependent on the use of my tool. In the most recent case, I was fully prepared and was dismissed with prejudice 127 days after being served.

This article comes together not so much because I was sued, but more so because I went to high school in Jersey City. A malpractice lawsuit was no different than a high school shakedown over lunch money. Having attended high school in Jersey City, I was no stranger to such shakedowns. There was always the provocateur and his gang. They split the booty between them. In a malpractice lawsuit, they corresponded to the attorney and the expert witness. If you wanted to survive lunch, you had better be prepared. Likewise, if you wanted to survive a lawsuit, you had better be prepared.

In the practice of medicine, an error of nature is not an error of your making, so making you pay is extortion. Yes, this is exactly what the ambulance chaser and the hired gun intend in a frivolous lawsuit. They know the lawsuit is frivolous. As in any shakedown racket, you prevail by using tactics that take your attackers completely off guard and for which they have no defense. At lunchtime, this means having some form of martial art at your disposal. Soon, your attackers realize that by singling you out, they made a big mistake. In a lawsuit, the martial art is my risk management tool. By singling you out, your accusers make a big mistake.

Kevin Pho: So in your KevinMD article, “Proactive risk management: a game-changer in preventing physician burnout,” you talk about your tools. So just briefly, what are some of the tactics that you use?

Howard Smith: Oh, sure. Now, I found the game-changer in medical malpractice. It’s risk management. The purpose of risk management is to manage a crisis. For any doctor, a malpractice lawsuit is undoubtedly a crisis. No doctor is immune from a complication. Since all malpractice lawsuits are predicated on complications, no doctor is immune from a malpractice lawsuit. Some complications result from a medical error, for which a doctor is responsible. Others result from an error of nature, for which the doctor is not. Malpractice attorneys don’t care to make this distinction, so I do.

My risk management tool uses the scientific method. It divides the standard of care and the medical intervention into 10 corresponding phases, with the understanding that, because the standard of care is the benchmark of excellence, no phase of the standard of care ever contains a medical error. Therefore, any adverse outcome in the standard of care represents an error of nature. Errors of nature are indiscriminate and happen in the standard of care at the same frequency as in any medical intervention. That occurrence rate is the background rate.

The tool compares the corresponding phases. Any difference between a phase in the medical intervention and the corresponding phase in the standard of care may not mean a medical error, but it definitely means an increased risk of harm in the medical intervention. Risk of harm is quantifiable as a relative risk. The quantitative risk in that phase equals the risk of harm times the background risk. And the quantitative risk in that phase of the medical intervention, in which there is a risk of harm, is always greater than the background risk. Otherwise, it’s the background risk.

What results is a sample of 10 phases for the medical intervention; some are equal to the background rate, and some are greater. This sample is tested against the background risk using the single-sample t-test, with a level of significance of 0.05, which corresponds to an interval of confidence of 95 percent. This determines whether or not there is a statistically significant difference between the medical intervention and the standard of care. When there is a statistically significant difference, there is a medical error. Otherwise, there is an error of nature.

Then a notarized report certifies the result for all parties to know. When there is 95 percent confidence that there is no medical error, the lawsuit is frivolous, and this case should not proceed. When there is 95 percent confidence that there is a medical error, the lawsuit is meritorious, and this case should proceed. Details are found in a recent issue of the American Journal of Statistics and Actuarial Sciences, which is the only real link in my KevinMD posting.

Kevin Pho: So you used this tool and this approach on your malpractice lawsuits, and you had a much better outcome. So tell me, how did you implement that? Did you discuss this approach with your legal team, and they implemented it as part of the defense? So how did you use this tool and have that better outcome?

Howard Smith: Well, I developed this tool as a graduate student back in 2005. And then, following that, I was sued as a codefendant with three other doctors, and I did discuss this with my legal team. The advice given to me was, “Don’t use it. It’s too unique. And during your deposition, just answer the question.”

During my deposition, I used it. The opposing attorney was visibly shaken, and actually angry, and hostile. He said this would never fly in court. He would make certain that this defense would be dismissed by a judge as irrelevant. To make a long story short, two weeks later, I was dropped from the case, and a couple of weeks after that, the three other physicians were as well.

Kevin Pho: Now, for those other clinicians who may be listening to you, and as you said, that threat of a malpractice lawsuit continually hangs over the heads of clinicians today, what kind of practical advice can you give to them, just from your own experience?

Howard Smith: You’ve got to be proactive. And proactive means, as soon as you get a complication, you then utilize this tool, certify the report, and send it to the malpractice carrier. Now, you can never tell what complication is going to lead to a lawsuit, so you use it on every complication. The malpractice carrier may be upset that you’re sending these reports to it, but then again, they have reporting criteria in the policies that they sell, and this is consistent with the reporting criteria.

Once it’s reported, if a suit should follow, it becomes a part of the evidence. Once it’s part of the evidence, your attorney will see it. His expert witness will see it. The plaintiff’s attorney will see it. The plaintiff attorney’s expert will see it, and you start to influence things, because you stand with 95 percent confidence. And at the very best, what they can offer is 50 percent plus a scintilla’s worth of confidence, which, at most, or at least, is 50.01 percent confidence. And this stands in stark contrast, and it scares the bejesus out of your accusers.

Kevin Pho: Now, in order for you to implement this tool, you had to go against the advice of your own legal team, and a lot of clinicians are simply just not willing to do that. So again, you know, are you telling a lot of doctors, if their legal team tells them not to use tools like these, to just kind of go against that advice?

Howard Smith: Well, first of all, you’re the defendant in a lawsuit. You have the right to the best defense possible. Present it to your attorney, and then question the attorney: “What strategy are you going to use?” That is my 95 percent confidence. It really sent a powerful message, because the second time I was sued, I used this, and the attorney, too, was reluctant. I understand his reasons for reluctance, but nevertheless, he acquiesced because he knew I was right, and I was entitled to the best defense possible. And I presented it to him, the best defense possible.

Kevin Pho: Now, let’s go back in terms of that connection between the malpractice threat and burnout, and that’s one of the many reasons why a lot of physicians are burning out today. Now, drawing from your own experience, what other pieces of advice can you give to support clinicians today? You mentioned this tool and being proactive. Just from that behavioral health standpoint, what other piece of advice can you share with them?

Howard Smith: Actually, I have two lessons that I want to share. First, this medical malpractice crisis that we now face is absolutely intentional. Make no mistake of it. The medical malpractice crisis, like the high school extortion racket, is more about power than about money. In this case, the power is socialized medicine. We are already being told that in socialized medicine, doctors will not be sued for malpractice. This is a myth. However, buying into it is a big mistake.

Second, doctors, as I said, must be proactive as soon as they encounter a complication, or no later than when they receive the request for medical records from the attorney. Being proactive only means that you’re going to use the risk management tool by preparing a written notification, as I described, and promptly informing the malpractice carrier of the incident. At the very least, you remain compliant with the reporting criteria in most insurance policies. One never knows what complication will progress into a medical malpractice lawsuit, so report them all. If the carrier objects, cite the reporting criteria.

In my experience, something as trivial as a transient elevation of liver enzymes is enough of a complication to precipitate a lawsuit. Because I was proactive from the beginning in this case, once the lawsuit followed, my notarized report, already in the possession of the malpractice carrier, was now part of the evidence. It was seen by my attorney and the medical expert he retained, and by the plaintiff’s attorney and the medical expert they retained, as part and parcel of legal discussion. It made abundantly clear to all parties that this case should never have been filed and that under no circumstances would I agree to a settlement. After being served, it took 127 days, but I was dismissed with prejudice, which means I was totally exonerated of all charges.

Kevin Pho: We’re talking to Howard Smith. He’s an obstetrics-gynecology physician, and his KevinMD article is titled “Proactive risk management: a game-changer in preventing physician burnout.” Howard, tell us some of your take-home messages that you want to leave with the KevinMD audience.

Howard Smith: OK. If there is only one take-home message, it is this: When it comes to a malpractice lawsuit, you have a choice of being proactive or reactive. Once sued, if it’s sympathy you are seeking, there are a host of certified life coaches, psychologists, social workers, et cetera, to show you sympathy. They will advise you how to survive this crisis and regain your purpose, dignity, and power.

However, if you are seeking a game-changer, reach out to me at [email protected]. Whether or not this complication is of your making, you can manage the crisis without losing your purpose, dignity, and power, and I will show you how. Remember, 95 percent confidence stands in stark contrast to 50 percent confidence plus a scintilla, which is really 50.01 percent, and which is almost always the best your accusers have when they come after you.

Kevin Pho: Howard, thanks again for sharing your story, time, and insight. Thanks again for being on the show.

Howard Smith: Well, thank you, Kevin, and I want to sincerely thank you for this opportunity.

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