Luck or skill? A-team players don't get sued.

Chances are high that most physicians will be sued for malpractice at least once in their career.

Every year, roughly one out of seven doctors gets sued, and if you're in a high-risk specialty, your odds are particularly grim. (1)

Yet some physicians practice year in and year out without ever being slapped with a lawsuit. Who are these people? What magic do they wield? Are they just plain lucky?

A look at their stories can be revealing--and encouraging. Asking these doctors why they haven't been sued inevitably leads to deeper questions: What communication techniques do they use? What happens when they make mistakes?

We interviewed accomplished lawsuit-free doctors from across the country and found that physicians aren't necessarily at fate's whim. Using lessons from their own lives, mentors, and even their own patients, they made their own luck.

4,100 babies

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Gary Hoffman, MD, is an obstetrician and gynecologist in Portland, Ore., in a group that handled roughly 4,100 births last year. None of his patients has sued him in the 18 years he's been practicing medicine, a remarkable record for a doctor in a busy practice and particularly so for one in his specialty.

Nearly eight out of 10 ob-gyns have been sued at least once, according to a recent survey by the American College of Obstetricians and Gynecologists. Four of 10 have been sued three or more times. "What's the old saying," Hoffman says, "better lucky than good?"

Luck aside, Hoffman works hard to establish lasting bonds with his patients, something that risk managers have been urging for years. He does little things to establish rapport. He'll sit down and talk with patients before examining them. Doing this makes patients feel less rushed. (Truth be told, he also often needs a rest.)

If he's late, he apologizes immediately. After listening to a patient, he'll acknowledge what she just said. He usually calls patients by their first names. Humor is helpful in small doses. He talks about their children and his children, and maybe a recent ski trip. "Patients are very comfortable with this, and over the years, I think that patients see me not just as a doctor, but also as a father, spouse--a human being."

But empathy forges the strongest bonds, especially in a crisis, he says. His perspective on empathy was shaped early on by the death of his eldest daughter. He was in his residency at the time, and his daughter was just 16 months old. "Her death changed how I view everything."

He says it helped him better understand the fragility of young lives and how patients grieve when their child dies. He doesn't usually talk about his daughter with patients, but she's there with him anyway when he's discussing the risks and uncertainties of childbirth. Talking about risk in a frank way, particularly with new patients, helps keep their expectations more realistic, reducing chances for conflict if something negative does happen, he says.

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Above all, it's important to be honest with your patients--and yourself. "I tell patients right up front what they are facing, frequently telling them, 'I am always honest and have nothing to hide.'" If he doesn't know an answer, he says so and is quick to get second opinions.

Hoffman recently had to do a difficult enterotomy, his first, and he asked a general surgeon to help. Considering his experience, he was slightly embarrassed to ask for the consult. "But, if it's something you are not comfortable with, you should not be doing it."

Being honest also means letting patients in on your thinking, he adds. If a patient's problem can be resolved in several ways, he'll talk about treatment options and explain how he arrived at them. This transparency builds trust. He then offers patients choices.

"As long as it is not harmful or goes against my limits or beliefs, I'll go along with the patient," he says. "For example, when a patient has a miscarriage, some want to spontaneously abort, while others want a D & C as soon as possible. If I impose my will against theirs and something goes wrong, the patient would say, 'I wanted to do this but the doctor made me do that,' It's a set up for a conflict."

If a fetus or baby dies, Hoffman says he'll make special efforts to help the family through the grieving process. "Patients sense the efforts, the concern for their well-being, and how it is hard for the medical staff as well. After going through a difficult situation like that, rapport is established for a very long time."

Communication counts

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Strait Fairey, MD, has been a family physician for more than 30 years and says he hasn't been sued because "the Lord looks out for some of us sometimes," and because his communication skills have kept him out of trouble.

Fairey practices in Charleston, S.C., a city with an aggressive cadre of trial lawyers, including one firm that earned $2 billion suing tobacco companies and now sues doctors for malpractice. Fairey has a knack for making people feel less rushed, even while being paged about a patient with chest pains. He has an easy smile and speaks deliberately, pausing frequently, a conversational style that gives patients and others opportunities to have their say. Talking to Fairey is not like driving on a one-way street.

When family practitioners get sued, it's often because they fail to make a timely diagnosis. To avoid this problem, Fairey says he gives patients a little extra time to tell their stories. "Sometimes you have to get through 20 minutes of the mundane stuff, before you get to the real problem." Like Hoffman, he frequently inquires about a patient's personal life, and uses the conversation as a springboard to address the patient's concerns.

"I often ask, 'What do you think might be wrong?'" The patient's self-diagnosis may be way off, but it also reveals the patient's fears and expectations, he says. "They may be worried that they have cancer, or that they're having a heart attack." Addressing patients' theories and concerns, no matter how irrational, shows you respect them and are being diligent, he adds. It builds trust and a sense of collaboration that often leads to more informed and accurate diagnoses.

Fairey says that over the years, he's also learned to be "very routine about being open-minded." When patients complain about migraines, he always asks them to describe their pain as best they can and then checks for a stiff neck and any other evidence of neurological damage. Doing this on a routine basis helped him once diagnose a brain tumor. "I might have missed it had I simply said, 'Here's some migraine medicine, bye.'"

Fairey has spent time on the witness stand. One time he testified on behalf of another family practitioner who missed a difficult diagnosis. "The true source of the matter was that the doctor was too brusque, and the family got the idea that he didn't care." The doctor eventually won the lawsuit, but "the experience was terrible for everyone all the way around."

By chance, some months later, a nurse came to see Fairey with a fever and back pain--symptoms similar to the patient involved in the lawsuit. With the other case fresh on his mind, Fairey consulted a neurosurgeon who found the patient's MRI equivocal, "so I consulted a second neurosurgeon who operated on her that day." The surgeon found an abscess.

Fairey says he was lucky that he testified in that malpractice case. Had he missed the diagnosis like the other doctor, his patient might have ended up paralyzed. But it also was a good example of keeping an open mind and using luck to your advantage, he said.

When mistakes do happen, even minor ones, it's vital that patients receive immediate attention, he says, echoing researchers who say that unhappy patients are more likely to sue. One landmark 1994 study (2) identified "problematic relationship issues" in 70 percent of plaintiffs' depositions from settled malpractice suits. Patients felt doctors deserted them or didn't value their views and time.

"I apologize all the time, for being late, for not calling back in a timely fashion," Fairely says. "Just yesterday, there was a snafu in my office," he adds, recalling how his staff failed to properly prepare a patient for a procedure.

"I ended up bringing the patient in after office hours and apologizing to her and her family." Had he delayed the test until the next day, "they probably wouldn't have sued me, but they wouldn't have been happy."

Addressing patients' needs quickly and with sincerity is even more important when they have serious problems. Hoffman recalls one patient who phoned his office with general complaints about cramping and spotting. The next day, she had a spontaneous premature delivery, and the baby died. Hoffman was off that particular day but went to the hospital to talk with his patient and her husband. Both were angry that his office hadn't told them to come in for an examination.

Hoffman acknowledges that the situation might have turned out differently had that happened. He spoke with them at length, discussing what they might do differently in the future. Meanwhile, he made sure the hospital's social workers helped arrange for burial. Later, he arranged for the patient to see a perinatologist.

He didn't do these things to avoid a lawsuit, he says. He understood the couple's loss and wanted to help them through it. He still sees the patient, who now has two children.

"She could have sued. We'll never know."

Always available

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Donald Pocock, MD, FACP, CPE, has been in practice for 32 years, mostly with a busy internist group in Eastern North Carolina. He has never been sued, but "there's not a doctor alive who hasn't made a mistake or had a bad outcome," he says.

He remembers a patient developing a rare side effect from a medication he prescribed, a situation that sometimes leads to a lawsuit. Pocock talked to the patient and his wife for some time, explaining what happened and the risks involved in medications. Instead of suing, the patient, a high-level federal official, ended up appreciating his straightforward approach, he says. "Cover ups are not in anyone's interest."

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Doctors who make mistakes naturally want to avoid their patients, said Robynne Chutkan, MD, a gastroenterologist in Washington, D.C., and in practice for 14 years without a lawsuit. "It goes against the Hippocratic Oath--above all do no harm--so you feel dreadful." It's important to recognize these emotions, and then face up to what happened, she said. "I've had physicians and lawyers say, 'Never make an apology,' and I say that's baloney."

Chutkan also learned an important lesson from one of her mentors, Henry D. Janowitz, MD, a renowned gastroenterologist at Mount Sinai Hospital in New York. "He was in his 80s and still practicing, and when someone called, he always said, 'Come right in,' never 'Right, we can see you next week.' He was always available, and this was very reassuring to patients and why they stayed with him for decades." Also, it's risky to make medical decisions based on phone conversations, especially after a patient has had a colonoscopy or another procedure, she says.

If a patient calls about problems, "your mind will want to say, 'Everything is fine,' because you want the patient to be fine." This can blind you to the possibility of complications. "So you have force yourself to say, 'I'm sure everything is fine, but let's do a couple of tests to make sure.'"

Chutkan's father was a surgeon in Jamaica. He also hasn't been sued, though she said the legal climate is much different there. Another lesson she learned from him and other mentors was that many patients, especially elderly ones and those in rural areas, may be too proud or intimidated to ask questions.

Doctors who sound like medical dictionaries to their patients have trouble building rapport. "I get calls from relatives asking for advice, and I say, 'How come you didn't ask your doctor that,' and they say, 'I was more comfortable asking you.'"

Listening is something you must always work on, says Pocock, who often sat on a rolling chair below the patient's eye level to help them feel more at ease. "When I was 34 or 35, I had a patient say, 'You're not listening to me. I'm here because I trust you."' Pocock says it was a valuable lesson to learn at that age. "You can get brash at that age. Your income is growing; you feel like you're on the top of the world. I was lucky to have someone be so honest with me."

Luck plays a part

Doctors who haven't been sued often talk about luck. "I count my blessings," Hoffman says, adding that he did have a brush once with the legal system. A woman who wasn't his patient field a lawsuit against a hospital and many others after she was brought to the emergency room.

He was on call that night, and since his name appeared on a chart, he was named in the suit. It was a good example of the shotgun approach some lawyers take, and when the judge took his first look at the case, Hoffman was immediately dropped from the claim. "In all of this, there's an element of luck."

Still, luck isn't as mysterious as people might think, according to Richard Wiseman, PhD, a psychologist who studied the behavior of lucky people for eight years and is the author of a book called The Luck Factor.

He found that lucky people tend to be more open-minded and quick to notice and act on opportunities; they tend to be more outgoing and are more likely to trust their hunches; and, they often persist in the face of failure, trying to turn negative experiences into positive ones.

Sure, luck helps, says Pocock, who is now chief medical officer of Morton Plant Mease Health Care in Clearwater, Fla., While practicing in North Carolina, his group saw 65,000 patients a year, including many high-risk cases. During the 26 years he was there, only two lawsuits were filed against doctors in his group, and those doctors successfully defended both, he says.

"Is that luck? I think that's doing your work well."

Tony Bartelme is a freelance writer and journalist in Charleston, S.C.

References:

1. Thorpe, KE "The Medical Malpractice 'Crisis': Recent Trends and the Impact of State Tort Reforms" (paper presented at the Council on Health Care Economics and Policy conference, "Medical Malpractice in Crisis: Health Care Policy Options," Washington, D.C., March 3, 2003).

2. Beckman, HB, Markakis, KM. Suchman. AL, Frankel, RM "The Doctor-Patient Relationship and Malpractice--Lessons from Plaintiff Depositions," Archives of Internal Medicine, June 27, 1994, v. 154, 1365-1370.

RELATED ARTICLE: Medical Malpractice By the Numbers:

* One in seven ob-gyns have stopped delivering babies because of rising insurance costs and the fear of being sued, according to a survey by the American College of Obstetricians and Gynecologists.

* Plaintiffs won roughly one out of four medical malpractice lawsuits, according to a report last year by the U.S. Bureau of Justice Statistics.

* Half of all medical malpractice trials involved surgeons, the bureau found.

* The number of medical malpractice trials has remained roughly the same since 1992, however the median amount awarded increased from $253,000 in 1992, to more than $431,000 in 2001, the bureau found.

* Average lawsuit settlements increased from $212,861 in 1997, to $322,544 in 2002, according to the Physician Insurers Association.

* Overall, more than 70 percent of medical liability claims in 2003 were closed without payment to the plaintiff, the Physician Insurers Association found.

* But, average legal defense costs were $87,720 per claim in cases where the defendant prevailed at trial. And in cases where the claim was dropped or dismissed, costs to defendants averaged $17,408, the Physician Insurers Association found.