Winning a malpractice lawsuit requires more than proving that your treatment was appropriate and prudent and that it conformed to the standard of care.
Physicians “must accept that behavior and personality play an absolutely critical role in the outcome of malpractice action.”
That advice is from Mark Gorney, MD, cofounder, past Medical Director, and now a senior consultant for The Doctors Company, one of the largest physician-owned malpractice insurers.
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“I am always greatly impressed by the importance experienced defense attorneys and claims professionals place on this aspect of a doctor’s defensibility,” he writes in Plastic and Reconstructive Surgery (2009;123:417-418).
“Exit polls consistently reveal that juries are at least as heavily influenced by their feelings about the players as they are by the facts of the case.”
Dr. Gorney’s article was addressed to his colleagues in plastic surgery, but his observations and conclusions apply to any malpractice defendant.
Sometimes top-notch surgeons are perceived as cold or aloof, he noted. “Their exceptional talent and intelligence sometimes make them appear impatient and contemptuous or arrogant and patronizing.”
These doctors can be the most difficult to defend, regardless of their competence. Recognizing that personality factors can be crucial, some insurance carriers have instituted workshops for their customers. But “on the whole [the workshops] have been a flop,” Dr. Gorney observed, “because busy doctors look upon this kind of effort with ill-disguised disdain.”
That attitude and demeanor can be costly if you’re in front of a jury. Dr. Gorney suggested showing a little humility. “You may think no one can really feel your pain, but litigation professionals understand what you are going through,” he noted. Doctors should follow the professionals’ advice.
Being the target of a malpractice lawsuit is not very different from having an illness, Dr. Gorney commented. “This time you [the physician] are the patient,” he said, adding that physicians’ personality characteristics may determine whether the verdict comes back for the defense or includes several million dollars in punitive damages, he said.
