Managing Risk

Response to Just (Don't) Do It from the ER/Hospitalist camp (paraphrased):

I can't [fail to provide futile care]! I might get sued!

Yes. You might. So what? Heresy alert: being sued is not the end of the world.

In the first place, you almost certainly won't be. Despite its bad rap, the legal system really does work more often than it doesn't (excluding the John Edwardsian bad baby cases and such.) Besides, there's far more to a "lawsuit" than just "being sued." The chances of a case being filed, having it go all the way to trial, actually losing at trial AND having the verdict upheld on appeal are vanishingly small. As I mentioned previously, you seem to have no problem ignoring identical threats from patients requesting narcotics when you feel they're inappropriate. Why? Because you know damn well that their chances of finding a lawyer stupid enough (even given the median lawyer IQ) to take such a case is somewhere between slim and none. Guess what: failure to provide extraordinary, futile care to a patient who is clearly in the terminal phase of life (again, I'm not talking about borderline cases) is also NOT breaching the standard of care anywhere in this country. That irate family is going to have just as hard a time as the druggie finding a lawyer to file it. Grow some gonads and stand up to those families who use empty threats of lawsuits to demand inappropriate care.

You could be sued -- as could anyone; anytime; for anything -- but there is no way such a suit could prevail. In fact, the more you/we stand up to them, the more firmly we establish that the "standard of care" for terminally ill patients is indeed NOT providing futile care -- which will further lessen the chance of a successful lawsuit.

I know, I know:

Getting hit with a lawsuit is so traumatic, even if I'm in the right, that there's no way I'm going to risk it. Besides, people are wrongly convicted of things all the time.

Think about this: there is a small but finite chance that a healthy patient undergoing a routine screening colonoscopy will suffer a perforation of the colon as a direct result of the procedure. It is also possible that he will then require surgery for the perforation, during which complications could arise; he may even die. So how are you going to address the patient with the lower GI bleed who needs a colonoscopy but refuses because, "I could die from it!" You explain to her that the risk of death is remote, and the adverse consequences of not having the study are much greater. Believe me, your chances of being successfully sued for not torturing granny to death are lower than having a colonoscopy complication.

In this case, though, there's the other side of the equation: however much suffering you endure as the result of a lawsuit, I can guarantee it pales before what you've inflicted on each patient whose death you prolong so painfully. How much torture -- actual physical and psychological pain -- are you willing to inflict just to avoid possibly enduring an unpleasant but incredibly unlikely event?

Just for the record, I have indeed been sued, and no, it wasn't the great psychic rape/trauma everyone reads (and shudders) about all the time, because I knew I hadn't done anything wrong. Granted, one needs to take some common-sense precautions: make sure your policy specifies that the insurance company can't settle without your consent, and then refuse to settle frivolous and nuisance claims. Treat your patients well; keep good records (and NEVER alter them); cooperate with your defense team; (don't blog about your trial while it's going on); all the usual advice.

As it was, hearing that jury foreman say "Not Liable" was an empowering, vindicating experience. Sure, I had better things I could have done that week, but running and hiding and doing things that weren't medically appropriate just to avoid the possibility of a lawsuit would have left me much worse off emotionally in the long run.

If a bully threatens to beat you up, acceding to his demands is understandable. But if you never stand up for yourself -- even when you're in the right -- eventually everyone makes the threat, even those who have neither the intention nor the ability to carry it out.

Isn't there a case to be made for standing up for what's right?