How Much Damage Does Lawsuit Really Do to EP?

Generally speaking, when an emergency physician (EP) loses a trial, it may take him or her a long time to recover personally, psychologically, and emotionally. "But with a few rather glaring exceptions, the public is unaware of that in large measure," according to Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing EP.

"I don't have empirical data to prove this, but my perception over years of being in the field is that a successful lawsuit seems to do less damage to doctors than they often feel it does," says McMenamin. While EPs should guard their reputations carefully, the general public is largely unaware of the outcome of malpractice lawsuits, he says, and this is especially true in an ED setting. "How much does the general public know about a specific ER physician? Odds are the patient is not even going to know until he gets there who the doctor is," he says.

If an ED patient is being examined by Dr. Smith, the odds are very slim that he or she would say, "I'm not going to deal with Dr. Smith because he was sued," says McMenamin. "How often does this happen in real life? My guess is, it's pretty rare," he says.

Bitter Pill to Swallow

If an EP's insurance carrier recommends settling a lawsuit based on expert opinion that the standard of care was breached, another review by an expert with a different point of view might be in order. Depending on the circumstances, it may not be a bad idea to get a third opinion.

"But if, at a certain point, if you get a string of these, it's difficult to ignore the weight of opinions of independent experts, presumably with no ax to grind, who all reach a similar conclusion," says McMenamin.

If the EP remains objective about the expert opinions, mirroring the concept of peer review and morbidity and mortality conferences, says McMenamin, he or she may realize that, in fact, settling the case might be in his or her best interest, "bitter though the pill may be."

The EP may want to reflect on the fact that nowadays, in most specialties, and certainly in emergency medicine, says McMenamin, "getting sued is just part of the cost of doing business. It's routine. Years ago, doctors didn't get sued that much, and if they did, they hardly ever lost. If they did lose, it was shocking, but not anymore."

An EP being sued successfully in an isolated case is not rare or unheard of any longer, he explains. "It shows you've got a few battle scars, a little seniority and experience, and some gray hairs to show for your trouble," says McMenamin. "It's not going to be the end of the world. The sun will come up in the morning and you'll be able to go to back to work."

McMenamin says he was opposed to the National Practitioner Data Bank's creation, owing to concerns that it would unfairly ruin good doctors in mid-career, or impede or even terminate successful practices. "But even though I object to its existence, it doesn't seem to have had the impact I was concerned about," he acknowledges.

If nothing else, says McMenamin, a settlement buys the EP the certainty that he or she can put the matter to rest. "It means that a distraction is gone from your life and you can go back to doing what you are trained to do," he says.

It's Still Your Patient

If, in fact, the standard of care was breached, it's better for all parties concerned to be truthful about this, according to Barry E. Gustin, MD, MPH, FAAEM, a Berkeley, CA-based medical legal consultant specializing in emergency medicine and a practicing emergency physician. "If you made a mistake but you're proud of your training and experience, you can feel bad about the patient and the injuries that occurred, but don't feel bad that this led to litigation," he says.

Gustin says to take the view that "your number has come in and you've been sued. My recommendation is to cop to it. Stipulate that the standard of care was breached, talk about what it's worth, and settle it."

It's not advisable to search for loopholes to defend yourself or seek to prevent a patient from being compensated if, in fact, the standard of care was breached, adds Gustin. "Don't get out there and lie to protect yourself because you made a mistake," he underscores. "Every doctor makes mistakes. It's just the nature of medicine, and it's what you took on when you became a doctor."

The fact that there is malpractice litigation doesn't change the fact that the plaintiff was once your patient, says Gustin. "Be remorseful and apologetic," he advises. "That's why you pay a premium to the insurance company — why do you think that money is being paid? Let them take care of it."

EP Best Judge of Own Care

McMenamin advises successfully sued EPs that the legal system is far from perfect and has many limitations in its ability to sort out good care from bad. "If your conscience tells you that you did the right thing, then a group of laypeople should have less importance than that," he says. "They don't know the truth in the same way that you do."

McMenamin also informs EPs that the legal system actively pushes in the direction of encouraging disputants to settle, regardless of the merits of the case. "That partly reflects that the courts are overloaded, and partly reflects the fact that settlement is nearly always cheaper than trial and will occur more quickly," he says.

In addition, says McMenamin, jurors are unpredictable, sometimes driven by emotional considerations and seldom well-educated in relevant subjects. "Jurors try very hard to do the right thing. But, to some extent, a lawsuit is a contest to see who has the better lawyer," he says. "To the extent that's true, an adverse outcome doesn't say much about whether an emergency physician is good or bad."


For more information, contact:

• Barry E. Gustin, MD, MPH, FAAEM, Berkeley, CA. Phone: (510) 549-1041. Fax: (510) 549-3268. E-mail:

• Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1015. Fax: (804) 698-2116. E-mail: