According to the Rules of Civil Procedure the only remedy that a court of law can provide to an injured party is money. Neither the judge nor the jury can award an explanation, an answer, an apology or a reprimand.
Consistent with this:
- Plaintiff attorneys regularly advertise, "Injured by medical care? Get the compensation you deserve;"
- Tort reforms which limit the amount of money that plaintiffs can receive reduce the number of lawsuits; and,
- Fifty percent of people who call a lawyer to inquire about suing their physician specifically cite financial difficulties as their motivation, with 33% of callers being unemployed[1].
At their most fundamental level, lawsuits are about money.
Despite the obvious nature of this fact, attorneys have learned that juries will not award money to people whom they perceive as being "money-hungry" or "greedy." As a result, trial lawyers never say that their case is about money. Instead, they always re-characterize it as being about some "higher" purpose.
This is seen in the theatrics of the courtroom, where malpractice cases are portrayed as being about "Good versus evil," "The little guy against the system," "Exposing the truth," "Abandonment" and "Betrayal." The themes are straight out of Hollywood. And, they work because they give jurors a chance to right a wrong, as opposed to just giving someone a pile of money.
The impact of this re-characterization has been scientifically demonstrated. Despite the fact that a desire for money motivates most people who call a plaintiff lawyer, their motives change by the time they are deposed.
Beckman evaluated deposition transcripts for situations where the patient was asked, "Why did you sue your doctor?" and then noted the answers[2]. Amazingly, seventy-one percent of patients cited some problem with the doctor-patient relationship as their motivation, with the top three responses being:
"My doctor deserted me" (32%);
"My doctor devalued me" (30%); and,
"My doctor did not tell me everything" (26%).
In Hollywood terms, these are "Abandonment" "Betrayal" and "Covering up the Truth". After many hours of preparation by their attorneys, the plaintiffs answered just like actors reading their lines.
Of course, the conditioning effect wears off and the real motive gradually reemerges. Hickson interviewed plaintiffs after their lawsuit was over and found that 24% of patients stated that they were motivated to sue by a desire for money[3].
To the scientific mind, it is readily apparent that "my doctor devalued me and did not tell me everything" is not the real reason that these patients sued. And, we therefore cannot reduce our malpractice risk by addressing these areas. Unfortunately, many people have been fooled by the theatrics, and we now have an entire generation of effort focused on improving doctor-patient relationships and communication as a means of avoiding lawsuits.
If we really wanted to reduce our risk of being sued, we would approach the problem scientifically and begin by looking at the persons who file lawsuits. Although trial lawyers have convinced everyone that patients sue only as a last resort after physicians repeatedly mistreat and abuse them, studies of plaintiff psychology have shown that this is not the case[4, 5].
Felstiner found that the decision to file a lawsuit usually comes as the end result of a culmination of life frustrations (e.g., divorce, job loss, arrest, bankruptcy, family conflict, illness), many of which are completely unrelated to the party whom the person sues. This means that, for many defendants, being sued is simply a case of being in the wrong place at the wrong time - a phenomenon to which many physicians can attest.
We will never be able to reliably avoid medical malpractice lawsuits until we better understand the psychology of the patients and families who sue us. Unfortunately, we have been so misled by trial lawyers that we currently operate from the belief that physicians cause every lawsuit by repeatedly mistreating an otherwise amicable patient to the point that he has no choice but to sue. And, we are a long way from a solution.
References
1. Huycke LI, Huycke MM. Characteristics of Potential Plaintiffs in Malpractice Litigation. Ann Int Med. 1994;120:792-798.
2. Beckman HD, Markakis KM, Suchman AL, Frankel RM. The Doctor-Patient Relationship and Malpractice. Arch Intern Med. 1994; 154:1365-1370.
3. Hickson GB, Clayton EW, Githens PB, Sloan FA. Factors That Prompted Families to File Malpractice Claims Following Prenatal Injuries. J Am Med Assoc. 1992; 267:1359-1363.
4. Felstiner W. Avoidance as Dispute Processing: An Elaboration. Law & Soc Rev. 1975; 9:695-731.
5. Felstiner W. The Emergence and Transformation of Disputes: Naming, Blaming and Claiming. Law & Soc Rev. 1981; 15:631-662.
