Episode Transcript
[00:00:00] Speaker A: What I tell people to do is just to practice the best medicine they can and the most reasonable medicine they can for the climate in which they're working. And you may be called to explain yourself, and that's okay, because if you know how, it becomes less of a stressor.
[00:00:13] Speaker B: Welcome to skin deep. I'm Dr. Ana Chacon, and today we have a very special guest joining us. Get ready for some expert insights you won't want to miss.
So tell me a little bit about how you got into, like, legal medicine and a little bit, I guess, about your experience in it.
[00:00:32] Speaker A: So I have been a practicing emergency physician since 2001.
And so I did my residency in the late 90s, and I was about five years out of residency. I was working as a nocturnist in a little community hospital, and I saw a patient who was a young woman. She was an engineer, and she had a really weird set of symptoms. And I spent a lot of time with her, and I thought about it a lot. And in the end, I wound up discharging her. After I'd done like, a head ct, I consulted somebody. I really was just like, holding is weird. And then she was supposed to see that consultant at 9 in the morning. I discharged her on like, 6:30. And then she didn't make it there. She went home and she had a ginormous stroke. And so she was 31 and an engineer. And that was the beginning of my entrance into the world of malpractice litigation. And in the end, I was involved in this case where there was a singular. That was. It was know there was a demand for $28 million, thereabouts. She had been an engineer. I work in a state where there. There are no caps on anything. So there's no caps on economic damages or emotional suffering or any of that. So in 2006, that was a. That was a big ask.
Back then, I was the only face of it. My hospital and my group were named, but I was the only doctor in it. And in the end, this thing lasted 12 years. And I went on trial in 2011 for four and a half weeks. There was a defense victory meeting that I won. And then. And then there was an appeal. And the appeal was based on some craziness having to do with this Canadian expert that they brought in to testify against me.
But then I went through all the layers of our courts, and then in 2015, my verdict got overturned. Subsequently, I went back to trial in 2018 for a second time. But I went back as a very different person because after the appeal. I mean, I had been really struggling with litigation stress this whole time. A lot of shame, isolation, wasn't talking to anybody. No therapy.
[00:02:31] Speaker B: No.
[00:02:32] Speaker A: I mean, I. I wouldn't have even. Even if you offered it to me, I would have been ashamed to take it. That was just. I had the sort of old school doc mentality, but nobody was offering it anyway. So between 2015 and 2018, I decided it was sink or swim time. You know, I'd, like, been swallowed by this for the larger part of a decade, and I was either going to die, as I say, at the bottom of the hole, or I had to learn how to get out of the hole.
And getting out of the hole was a lot of work. It was a lot of work. But I also made a study of.
I made a study of the law. I didn't go to law school, but I learned a lot about tort law, legal performance, everything that I feel like doctors should know. And then by the time I went to trial in 2018, I invited my residents to come. My nurses came. I knew exactly what I was doing. And then there was a defense verdict a second time. And I should say that I did not do anything wrong in the care of this patient. This was a completely unpredictable event for something that happened in the way she presented had so little to do with what actually happened to her. And I still can't make it make sense, but I do think that I gave her excellent care. And so it became this whole thing about getting trapped in a situation where you felt like you did a good job, but everything about you was on the line for a really long time. And now I don't want other people to go through that, at least not with a degree of suffering that I did.
[00:03:53] Speaker B: That sounds like so many years.
So total in total. I'm just trying to do the math. How many years?
[00:04:00] Speaker A: 2006. I saw her and the wheels started. Really? It didn't get filed till 2007, but the wheels were turning in 06.
And then 2018 is when it finished that 12 years.
[00:04:12] Speaker B: Wow.
[00:04:13] Speaker A: That I was pregnant with my third kid when I saw her. And by the time this case ended, she was in middle school.
Wow.
[00:04:20] Speaker B: Oh, my goodness. And one thing that I get a little bit concerned of just being a physician, and I have a, you know, have an online practice, and I have a private practice in person as well. But follow up. That's something that makes me nervous in the ER sometimes. I, you know, I see patients that refer to me from the ER and stuff like that. But how do you make sure that whoever walks out and actually I always give everybody a follow up. Even if you're 100% normal. Okay, well, you need an animal skin check or if you see something new, you need to come back. I never actually sent anybody out telling them you need to see somebody again.
But how do you make sure that people see somebody? I'm just wondering, you probably see some, some people in the ER that they just need to see somebody. Not doctor, but they need to see someone.
And what kind of liability does it give you if people just don't follow up with anybody?
[00:05:17] Speaker A: That's a tough question. Especially because of the climate in the state where I practice. It is impossible almost to get in with doctors. We have a, you know, for most primary care practices in the state, we have an 18 month to 2 year wait to become a new practice patient, which is insane, but that's our reality.
So the emergency department has, you know, we have agreements with on call specialists to try to get people in and, but they're so squeezed that sometimes it doesn't happen when we want it to.
And then the, the, the lie. This question of like, can you be held liable for something?
You can be held liable for really almost anything because then there are laws. And then what this whole system is about is determining whether or not, you know, all the way through jury trial, does this physician own liability? Like is, is, was what happened, this doctor's fault in some way. And there's these, you know, everybody learns about these four elements of negligence, blah, blah, blah, blah.
You just have to be able to convince a jury of a story that asserts that all of these things were met in a way that makes sense to them and then they can assign liability. And so these questions of like, can I be liable for this? Can I be liable for this? Like, it's hard to say. Put it in front of a jury and you'll find out.
So in these cases, could the, could I have some liability because the person never followed up? Sure. If something bad happens and I was the last person to touch that patient, that's who they'll be looking at when the bad thing happens. Even if I said like, please see this doctor in like three days, they could certainly come back to me and say like, you know, the climate in your state, this person wasn't going to get help in three days. But we still try. Follow up in three days. Follow up in three days. There are no hard and fast answers to these questions. And so what I tell people to do is just to practice the best Medicine they can, and the most reasonable medicine they can for the climate in which they're working. And you may be called to explain yourself, and that's okay, because if you know how to, then it becomes less of a stressor.
[00:07:17] Speaker B: Just curious, was there any contact after this happened with the patient? Sometimes I just try to change my practice on different things that I see people going through. But I always tell people, hey, you know, if you're not better, you need to make an appointment. And we limit, you know, we have an online booking system. We try to make it as easy as possible. I know ERs don't have that capability. You're often left waiting hours for someone to just, you know, help you. Was there any contact after this before it kind of exploded?
[00:07:49] Speaker A: No, no. I mean, I think the lawsuit was initiated as soon as she was out of the hospital. It was sort of a. The wheel started turning immediately. She had a pretty prolonged ICU stay. And then I think the. I think they knew right away that they and I. Part of the problem, I think, was that I didn't. She got taken to a tertiary care center after that, and I didn't know it happened. And so I didn't know what happened until I found out that I was really. That I was being sued and that they were asking for records and things like that. And so I do think that sometimes, you know, after. After. After an adverse event, if you know about the adverse event, it is wise to, you know, doc, doctors shouldn't ghost their patients when something bad happens, right? So, yes, you should absolutely be working with them and trying to do whatever you can to mitigate whatever harm there was. And just because you're a person who cares about your patients, however, once there's legal action against you, you can't, you cannot. That's considered witness tampering. And so it gets really dicey when that person still wants to see you as a patient and they're also suing you, which definitely happens sometimes. And my advice to people there is that if there is no way around it, then you just limit your conversation. You don't talk about what's being sued, but oftentimes, if you can find that person, some other person to follow up with, that would be smart.
[00:09:07] Speaker B: One thing I really confirm on, and I don't know what's common in the er, is seeing people with an assistant, a medical assistant who's there, who can be a witness that you tried your best, or this is how the patient presented and you did everything, and also to help assist with documentation and I'm just curious because this took so long, the legal fees and how you were able to afford this, because that I feel like when these things happen to doctors, sometimes who ends up winning are the attorneys, Even the patients that are doing this that think they're going to get something out of this. But really, the attorneys that. I don't want to say that they prey on these sorts of situations, but I can't imagine that that would have been inexpensive to deal with.
[00:09:55] Speaker A: Well, this is something everybody ought to understand is their malpractice insurance policy. And most doctors don't. And so, and I didn't, I didn't even know who my carrier was when I started. I was just. They, you know, I didn't know. The first step was to notify your insurance carrier when something like this happened. And so you have to be able to distinguish between malpractice insurance or medical professional liability. And then there are other sorts of actions. And you have to know, like if you're tangling with the medical board or if you're getting sued over someone fell off your table and they're not calling it malpractice, they're calling it something else. Right. You just have to know what your policy does and does not cover. It will not cover criminal actions or anything like that. So if the Department of Justice comes knocking and says that you are doing fraudulent billing, there's a good chance that your policy won't cover that.
[00:10:42] Speaker B: Right.
[00:10:42] Speaker A: And then you're going to have to pay for your defense. If you have medical malpractice insurance and you have a good policy, you should have a good policy.
Your defense for regular malpractice should be covered. Right. Where it gets tricky is whether or not you have the consent to settle a case or, you know, or to refuse a settlement and go to trial. What happens when the demand for the money exceeds your policy limits? And so you should know what your policy limit is, and you should know what happens if the demand or if there's a settlement of $3 million, and my limit is one who owns that $2 million. And it will vary from policy to policy. And so it really behooves everyone to understand how strong is your policy, who is ins and what happens in these scenarios. Because there's a lot of, you know, there's a lot of if this, then that, that becomes very important once you get it. Now, for me, the way it was set up, if my insurance, if I signed away, my. Had a consent to settle, meaning that I had to. They had to get my consent to settle a case. But in my state, there was precedent that if I signed away that right and gave it to the insurance company, if the insurance company decided to take it to trial and there was a jury verdict in excess of my policy limits, I didn't have to pay for it. They owned it. And that was very empowering for me because I knew my assets weren't at stake. And so I think it's a very different feeling if you go in feeling, I'm not covered for this. And juries are usually they side for the doctor. And very few cases go to trial. Like, let's just, let's. From the outset, let's just say like fewer than, you know, 8 to 10%, probably less than that in the last few years go to trial. I'm just a weirdo that went twice.
But very few go. But the jury is, you know, they're a little unpredictable. And so sometimes settlements are more desirable. But understand your insurance. That is one very, very important thing I have to say to everybody.
[00:12:41] Speaker B: Excellent feedback. And then, yeah, I wanted to talk about going to trial because you went twice and you were persistent about it. And just in my experience, I also know doctors that have given up very easily with things, whether it's a board investig and. Or, you know, and then they've suffered a lot because they just gave up. You know, they've suffered consequences.
They had a press release and people started posting it everywhere. How important is it that you just not give up and continue fighting for what you think is right, that you did the best care because you, even though it took many years, you're in a good spot. How important is it to kind of be persistent and, and continue, you know, plowing through this difficult time?
[00:13:28] Speaker A: It is going to be different for everybody, right? And again, some of it's going to depend on how much of your own assets are at stake and how nervous you are about that. How much are you able to hold the uncertainty and how well are you able to perform during this process? What's your confidence in your ability to perform as a defendant? So there are a lot of people who render wonderful care and that are just like, settle this thing. I can't deal with it. Because they cannot deal with the uncertainty of the outcome. And the uncertainty will last for, for years. And they suffer really greatly. Personally. Just there's a lot that goes into litigation stress that we can talk about some other time, but this turns into a professional challenge or even a personal challenge like pretty much no other in the career of the physician. And Some people cannot cope with that. Another important thing is that oftentimes they don't have the decision. They can't make the decision about settling it. So even if they think the care was good, if the insurance company has the right, according to their policy, they can decide, you know what, they just want a settlement for, you know, 50 grand. It would cost 100 something grand to go to trial. This is way cheaper. Some companies will do that. And then there's a settlement against this physician when this, when the physician had no liability at all. So we have unfortunately set up a system by which we adjudicate medical care by legal outcomes that are determined by people who don't understand medicine. And this is a very long and complicated thing, but we do have to accept that. We have to accept it. And so, so in my case, honestly, I think the first time around, I would have settled if they let me out of it because I was so tortured by the whole thing that I, even though I knew I didn't do anything wrong, something bad had happened, I was worried about it being misconstrued. I was worried about losing a trial and being in the paper and all of that stuff. Like, that was too much for me to take at the time before I really develop some skills and strategies and understanding and wisdom and perspective and, I mean, honestly, skills. And the second time around was a totally different story. Like, I was ready. I was ready, and I was definitely honing in on, like, I, I know how to defend my care and I'm capable of doing it, even though there's always risk.
So my whole lens is that we need to, to start educating people early. Like, this is something that insurers ought to do, right? This is your star witness. They should know how to perform in defendant. And certainly if you're going to trial, I mean, in a deposition, if you know how to perform in a deposition, your odds of getting the outcome that you want are much better. And we're not dumb people. Like, we should understand this ecosystem and who all the people in it are, how they make money off of us, because they do. And we shouldn't really, you know, I want us to take our relationships back with the plaintiffs and the patients. You know, once, once these things start, the lawyers all get in the way, and you can't, you know, legally, you cannot talk to patients. But there are other models of resolution out there that I think we all ought to pay attention to, like communication resolution programs, the Michigan model. There are lots of ways that we can take this back. And we need our Systems to really look at those and think about it. Because right now, this is not a good system for anybody, for doctors, for patients. You know, the only. As you said, the only people profiting off of it are the. Or the attorney. Yeah. And those plaintiffs attorneys will take 40% if maybe, plus expenses. And it takes years and years and years for people to get. Maybe they do need money for their care. Maybe there was harm and there was an adverse event that was in some way the doctor's fault. That totally happens. But this system won't get them what they need for many, many years. And so we need to work towards better systems altogether.
[00:17:04] Speaker B: Why did you go to trial twice? I'm not following that.
Years later as well.
[00:17:10] Speaker A: Yeah, well, one reason is. Well, the whole thing takes. I just live in a state where the courts take forever, and anyone involved in litigation should expect it to last a few years.
Yeah. If you feel like from the beginning, like, I didn't see this patient, why am I in this lawsuit? Which totally happens. It will take a while for you to get dropped. Like, it's just. That's just how it is. There's nobody. There's. Unfortunately, you know, it'll. You will probably, but it will take some time. Everything moves slowly in the law. Everything moves slowly in the courts. And we're used to, like, we want. You know, we do a thing, we get a result, we move like, we like moving quickly. And that's not how this world works for me. I had a lot of really positive expert reviews of my case. Like, they'll send your case out to experts. The insurance company will, your attorney will. And everybody came back saying, like, my care was excellent, but something bad happened, which is not the same thing as malpractice. And so even though I would have curled up into a little ball and died willingly in the beginning, because I was just so tortured by it, because I didn't. I didn't understand the things that I know now, the insurance company, we were like, we're not. We're not paying this. There's a request for a settlement for policy limits, which is a million dollars. We're not paying this person million dollars. You did a good job.
And I had an insurance company that was their motto was, we defend good medicine. Like, they were, you know, some insurers will not do that.
They're too afraid of risk. And there are some companies, you should know the culture of the company who insures you. And they were basically like, nope, you did everything right. We're gonna get you ready. So even if I did. I was sort of kicking and screaming. I didn't wanna do it, but they got me ready and then we won. And then, I mean that was from 2006, 07 to 11. And then the appeal was ridiculous and it took, you know, all those years to go through the levels of the courts in our state and just, I mean, to be frank, we have a very plaintiff friendly judiciary in the state and so even though the merits of the case were totally had nothing to do with it, that they overturned the verdict and what was I going to do? So, and then we didn't get to go back until 18. So that, I mean part of it is knowing the laws in your state, knowing how things work. Like, here's one thing. If I will, if I will drop one thing. If you go into this system not understanding it and expecting fairness, you're going to be disappointed.
You're going to be disappointed. You have to know, just like a patient who comes into this convoluted medical system and they're like, what are you talking about? I got to wait six hours to be seen in the ER and I can't get into a primary care doctor for 18 months. Like, what are you talking about? If you come into the system expecting healthcare to work seamlessly, you're going to be super disappointed. Right. But the important thing is like understand the system you're in and know how to navigate within it to get the things that you need. That's what we help patients strategize around. That's what a defendant ought to be able to do to strategize around. But you got to know the environment in which you're operating.
[00:19:59] Speaker B: I can't imagine this was easy to deal with from a licensing renewal standpoint or the Rhode Island Medical Board I'm sure is very strict and not easy to disclose this to and credentialing and even applying for other jobs. I don't know if you did that during this time because it was 13 years.
But how does it impact people when this is going on and just doesn't go away for years?
[00:20:28] Speaker A: It impacts you greatly. That's. Well, it impacts you as much as you will allow it to make you suffer. But usually a single lawsuit isn't enough to really harm you. And if you can, you will always get a chance to explain what happened. Now in our state, the medical board automatically investigates legal complaints and in some states they're making the mistake of equating a legal outcome with how good a doctor you are, which is total, you know, that is ignorance but, you know, in Massachusetts, for example, they're using settlements and legal outcomes to, you know, automatically discipline doctors, which I was going to chase every doctor out of Massachusetts. It's insane because the legal outcome, again, you don't have control over the settlements half the time. Right. So if you're equating that with, oh, the doctor's a bad doctor, that's bonkers. But anyway. And so, and these are things that, like, you know, you've got to. You have to start being aware of so that you can push back against.
But you'll have to. You'll have to report these things. I did have to. You know, I didn't get hauled in in front of the board, but there was. I got notified of the investigation.
The reviews were, fortunately for me, all in my favor, and the outcomes were all in my favor, but they took a really long time to get to. And I didn't have to pay any additional costs to defend myself in front of the board. But if you're in front of the board, you need a lawyer, and you may have to pay that out of pocket, and it's worth it because you need somebody who can navigate that for you. Like, we don't understand how to. We don't understand how to do it, but, yeah, it's something that you'll continue to have to contend with, but. So a lot of doctors have to contend with it. It doesn't mean anything in and of itself, but then you can get language from your lawyer about how to. How to actually report that in your applications and things like that.
[00:22:12] Speaker B: Yeah. When you were notified of this, how were you notified? Was it just a letter in the mail? And did you call an attorney right away?
[00:22:21] Speaker A: I was notified at work.
So I got served papers at work, but fortunately not, like, out in the er. I was in, like, the offices and my chairman was there. And so fortunately, I didn't know. Well, so I'm reading this by myself and I didn't know anything.
Unfortunately, my. Fortunately, unfortunately, my group was also sued. So my chairman knew. Was also served papers as he was the sort of representative of the. Of the group. We were a little independent, small democratic group at the time. And so he also got served. And so after, like, panic and not understanding any of that, eventually I saw him and he was like, you need to call. You need to call the insurance company, like, separate from me. We can't really talk about it. And I didn't know who that was, so I had to get information about that.
And then they gave me an attorney, and then that's how it all unfolds, is you call the carrier. The carrier starts to claim. Usually they'll assign you attorney, but if you have a special attorney that you want to work with, you can ask them. But, you know, they usually have a roster of people that they work with, and they're sort of like, they contract with them, they pay them hourly for your defense, and then that becomes your, you know, sort of Sherpa to guide you through this whole crazy, crazy thing. But it helps if you know a thing or two before you get in there.
[00:23:38] Speaker B: All right, thank you. Have a great Monday.
[00:23:40] Speaker A: Me, too. All right. Bye. Bye.
