Communicate or litigate.
That’s the overwhelming advice from lawyers, judges and insurance companies to physicians who want to avoid being sued for medical malpractice.
The willingness of physicians to take the time to talk to their patients in easy-to-understand language will help keep them out of the courtroom, according to more than 30 attorneys, judges and health care professionals interviewed. That advice comes too late for a Pittsburgh physician who lost a malpractice case in Common Pleas Court earlier this year. A jury ordered him to pay more than $1 million because of a failure to communicate with his patient and the patient’s former physician. Breakdown in communication, combined with failure to consult or do enough research … those two areas lead to the most malpractice suits. The Pennsylvania Medical Society Liability Insurance Co. considers communication so important that it offered physicians a 10 percent discount on their 1993 malpractice insurance if they attended a half-day seminar on the subject this fall in several different cities. “The failure to communicate — between doctors and patients, doctors and other doctors and doctors and nurses – leads to diagnostic errors and a lot of patient dissatisfaction,” said trial attorney Jerry I. Meyers, who specializes in medical malpractice cases. Thomas Hoffman’s malpractice lawsuit against Dr. Laligam N. Sekhar, a neurosurgeon, supports Meyers’ contention. Hoffman, 37, of Baton Rouge, La., said the right side of his face is paralyzed because of a lack of communication between Sekhar and a neurosurgeon who previously had operated on Hoffman for tinnitus, a high-pitched ringing in the ears. Sekhar operated on the wrong nerve because the correct one already had been removed by his colleague at Presbyterian University Hospital, and Hoffman’s medical record — and a videotape of the earlier surgery — showed it. A jury ordered Sekhar to pay Hoffman $1,152,750.
Judge Judith A. Friedman, acting on a request by Hoffman’s attorney, James A. Dattilo, then ordered Sekhar to pay $403,000 in delay damages because the physician hadn’t made a reasonable offer to settle the case. Court rules allow such payments. Meyers’ assessment is also confirmed by the Pennsylvania Medical Society Liability Insurance Co. and the Physician Insurers Association of America.
Failure to communicate during the initial interview or in the evaluation of patients was the No. 1 reason why Pennsylvania physicians were sued for malpractice from Jan. 1, 1985, through June 30, 1991, the association said.
The association, based in Pennington, N.J., and made up of 44 physician- owned insurance carriers, insures 60 percent of independent physicians in the United States. The Pennsylvania Medical Society Liability Insurance Co. is a member of the association.
A classic example of a communication problem is the “take two aspirin and call me in the morning” advice some physicians give over the telephone without really listening to what a patient is calling about, said Lori Bartholomew, acting director of governmental relations and research for the Pennsylvania Medical Society Liability Insurance Co. Such communication breakdowns contributed to the payout the association made — $266 million in Pennsylvania and $2.6 billion in the United States — for malpractice cases during that 1985-91 period. Better communication between physician and patient may not prevent a malpractice suit, but it can help resolve it, said Common Pleas Court Judge John L. Musmanno, administrative head of the Civil Division. Musmanno, who specializes in settling medical malpractice cases to save time and money, resolved a recent case because the doctor and patient had established a rapport. “She liked him; he liked her,” Musmanno said. “She said she didn’t want to sue, but he had hurt her. He admitted that he had made a mistake and apologized. The case settled for about $35,000.” That sum is pocket change compared to the multimillion-dollar awards a jury might order a physician to pay.
Musmanno and his Civil Division colleagues try to settle malpractice casesbecause they take so long to try before a jury — at least two weeks and often longer. Although the division has 1,929 such cases on file, Musmanno said only 485 are ready for trial. And the cases keep coming. At least one medical malpractice suit is filed every day in Allegheny County.
Howard F. Messer, president of the Academy of Trial Lawyers of Allegheny County, said the 230-member by-invitation-only organization — equally composed of plaintiff and defense lawyers — has been helping the Civil Division settle cases, including malpractice disputes, for three years. Messer, who is vice president of the 4,000-member Pennsylvania Trial Lawyers Association, said too many doctors treat too many patients like numbers. He cited assembly-line medical offices where patients wait at least three hours only to get a few minutes of attention from their doctor.
Why Physicians Were Sued
Here are the top reasons, in order, physicians were sued in Pennsylvania and the United States from Jan. 1, 1985, through June 30, 1991: Pennsylvania:
- Problems related to the initial interview and evaluation.
- No care rendered.
- Prescribing medication.
- Consultation with another physician.
- General anesthesia.
- Removal or destruction of a disc.
- Total abdominal hysterectomy.
- Problems related to diagnostic interview and evaluation.
- Advice given to a patient without treatment.
- Application of a cast. United States
- Prescribing medication.
- Problems related to comprehensive interview and evaluation.
- General physical examination.
- Consultation with another physician.
- Problems related to diagnostic interview and evaluation.
- Problems related to the initial interview and evaluation.
- General anesthesia.
- No care rendered.
- Caesarean sections.
- Manually assisted delivery of a child.
Originally Published Pittsburgh Post-Gazette (PA); December 10, 1992; Section: LOCAL Edition: FINAL; Page: A1; Memo: The Allegheny Bulletin is a publication of The Pittsburgh Press Company produced during a newspaper strike which disrupted publication of The Pittsburgh Press.
*Jerry Meyers retired from the firm in 2021.