Malpractice & Increasing Victim Shaming in Medical Field

People make mistakes in every profession. However, when doctors make mistakes, their patients suffer consequences that can have devastating effects ranging from additional costly medical procedures to death. Despite the staggering number of medical errors committed in the United States, there seems to be a growing sentiment among many doctors that they are the de facto victims of medical malpractice lawsuits.

There are a couple of possible explanations for this phenomenon. One such explanation may be that there has long been an institutional bias within the medical community of avoiding admissions of a mistake. While this attitude is often attributed to fear of malpractice lawsuits – which is viewed as a “crisis” in the eyes of many doctors and sympathetic elected officials – it is really a reflection of doctors’ egos. The highly specialized nature of U.S. medical system makes it far too easy for individual physicians to shift blame onto the medical system and avoid taking any personal responsibility.

Another explanation for victim shaming in the medical industry is that there is a larger cultural trend of “victim-blaming” that seems especially prevalent in the United States. In a 2016 story for The Atlantic, author Kayleigh Roberts discussed, “The Psychology of Victim-Blaming” in the context of individuals who are the targets of criminal activity, such as rape or robbery. Oftentimes, Roberts noted, there is a reflexive tendency for many people to question “what a victim could have done differently to prevent a crime,” rather than asking how to hold the offender accountable.

It’s Never Acceptable to Cover Up or Avoid Revealing a Mistake that Would Potentially Harm a Patient

Roberts quoted psychologist Sherry Hamby, who said Americans are often predisposed to victim-blaming because of their belief in the “just world hypothesis,” or the “really strong need to believe that we all deserve our outcomes and consequences.” In other words, unlike other societies where people recognize that “bad things happen to good people,” the popular tendency in American culture is to assume just the opposite – that the victim of the misfortune must have done something to deserve it, or at the very least could have prevented it.

Such attitudes are readily exploited by some physicians who seek to deflect responsibility onto their patients or the patient’s’ medical malpractice attorneys for their own medical mistakes. Consider a series of reports published by Medscape, who actively study physician attitudes on malpractice and medical ethics. In its 2016 Ethics Report, Medscape asked approximately 7,500 physicians representing more than 25 specialties a simple question: “Is it ever acceptable to cover up or avoid revealing a mistake that would harm the patient?”

Surprisingly, only 78 percent of doctors answered this question with an unqualified “no.” Of the remaining 22 percent, more than one out of five doctors who responded, 14 percent said “it depends” on the situation. As many as 7 percent said they would, in fact, consider it ethical to hide a medical mistake from a patient.

In an election for public office, 78 percent of the vote would be considered an emphatic landslide. But when it comes to basic issues of medical ethics, it ought to shock the conscience that only 78 percent of medical professionals would not lie to their patients to cover up a medical mistake. The 78 percent figure is especially troubling given that Medscape reported that when it conducted the same ethics survey just six years earlier, 95 percent of doctors “said it is never acceptable to cover up or avoid revealing a mistake that would potentially harm a patient.”

The Failed Attempts to Blame Patients

According to a May 2016 study published by Johns Hopkins University, “medical error” is the third-leading cause of death in the United States, accounting for approximately 250,000 fatalities each year. Notwithstanding, when surveyed about the underlying causes of medical malpractice cases, doctors were once again seemingly quick to shift the blame. Medscape released a Malpractice Report in 2017 that surveyed another 4,000 doctors. About 55 percent of the respondents said they had been named as a defendant or co-defendant in at least one medical malpractice lawsuit during their career. And roughly half, 49 percent, said they had been named in between 2 to 5 such lawsuits.

Eightyseven percent of the physicians who have been sued said they were “somewhat” or “very” surprised to find themselves the subject of a medical malpractice claim. Similarly, 89 percent said the lawsuits were “unwarranted.” Only 5 percent admitted they had done something to justify the lawsuit.

Mirroring the 22 percent of doctors who told the Ethics Report they would consider misleading a patient about a medical error, 26 percent of respondents to the Malpractice Report said that as a result of being sued they “no longer trust patients” and “treat them differently”, which provides more evidence for the hypothesis that the medical industry’s culture of victim shaming and blame-the-patient mentality is ever-increasing.

When asked what they might have done differently after going through a malpractice lawsuit, 12 percent of the surveyed doctors said they should “never have taken on the [victim] as my patient in the first place.”

Other responses to this question included referring the patient to another physician and exercising more caution “in the way I phrased things to a patient.” Apparently, the doctor admitting his or her mistake and apologizing to the victim was not an option.

The Failed Attempts to Encourage Doctors to Apologize (Without Admitting Liability)

This brings up a major complaint raised by many medical malpractice victims: the failure of a medical professional or institution to apologize for their mistakes. Dr. Darshak Sanghavi, a doctor at the University of Massachusetts Medical School, explored this problem in a 2013 featured article for the Boston Globe. Sanghavi presented the case of a 28-year-old woman whose 8-day-old premature daughter died while under the care of a local hospital. The mother said that in the weeks following her daughter’s death, she “made three requests” to meet with the doctors responsible, but “no meeting materialized.” At one point the hospital even denied the mother and daughter had even been patients – an incident the hospital later claimed was a “paperwork error.”

Nearly seven years later, a Massachusetts jury determined that the hospital and a nurse at the hospital were negligent in the death of the mother’s child and awarded total damages of nearly $11.5 million. Afterwards, the mother told Sanghavi that “all she wanted was to meet with her baby’s doctors and be reassured that they had done all they could.” But they never spoke to her.

The difficulty with cases like this one is that doctors face a brutal paradox: They are convinced that apologizing will certainly lead to a medical malpractice lawsuit. While that may be true, when a doctor refuses to apologize, the frustrated victim feels they have no choice but to file a medical malpractice lawsuit to find answers and closure.

Some states have tried to address this issue by passing so-called apology laws. About three dozen states currently have such laws. In Florida, for example, the apology law states that any “statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence in a civil action.” In plain English, just because a doctor sympathizes with you and attempts to console you, then that does not constitute evidence you can use against them in a subsequent malpractice lawsuit.

Apology laws sound great in theory, but in practice, their effectiveness in promoting more honest communication on the part of doctors is questionable. For one thing, many apology laws, including Florida’s, do not cover a “statement of fault.” So while a doctor may technically risk nothing legally by expressing general sympathy for a victim’s injury or loss, if the doctor actually admits making a specific mistake, that can be still used as evidence against them in court.

And according to a recent paper published in the Stanford Law Review, there is no empirical evidence that apology laws actually “limit medical malpractice liability risk.” In fact, in many cases the apology can “provide information that the patient does not have, thus providing possible motivation to pursue a claim even though the apology cannot be introduced as evidence.” But the study’s authors concluded that apology laws do not, as a general rule, make it more likely that a doctor will be sued for malpractice.

One of the study’s primary authors, Benjamin J. McMichael of the Vanderbilt University Owen Graduate School of Management, expressed that beyond the fear of lawsuits, many doctors are unwilling to apologize simply because it is bad for their egos. “It is terrible for self-esteem,” McMichael said.

The Failed Attempts to Blame Lawyers for the Malpractice Insurance “Crisis”

The irony is that while doctors complain that patients are simply taking out their anger by filing a malpractice lawsuit, physicians in turn often respond to their own mistakes by turning their own rage against lawyers. In another Medscape Medical Malpractice Report, this one from 2015, illustrates just how far such anti-lawyer attitudes pervade the medical industry. Out of roughly 4,000 doctors surveyed, 32 percent of respondents said they “truly hate” lawyers representing medical malpractice victims. Another 46 percent said that lawyers “annoy” them but recognized they were “just working at a job.”

This “blame the lawyers” attitude is even better reflected in response to a question on how best to “discourage” malpractice lawsuits. Medscape offered five responses. Four of them involved adopting new restrictions on lawsuits, including requiring cases “be prescreened for merit by medical panels,” imposing caps on damages for a victim’s “pain and suffering,” and banning attorneys from representing victims on a contingency basis.

The least popular option? “Doctors should stop making medical errors.” Only 13 percent of respondents thought that was the correct approach. In contrast, banning contingency fees for lawyers enjoyed nearly three times as much support among doctors.

In some respects, it makes sense for doctors to blame lawyers for their malpractice woes. The legal system is a popular target for politicians and pundits looking to score cheap rhetorical points. And physicians represent a much better-funded and organized lobby than malpractice victims, many of whom are scared to file a complaint in the first place.

As we have seen in recent years, many state legislatures have taken at face value the medical industry’s claim that they are under the existential threat of a “medical malpractice crisis.” We have seen this battle waged time and again here in Florida. In 2003 state legislators imposed limits on the amount of noneconomic damages (i.e., compensation for pain and suffering) that a malpractice victim could receive. At the time, the legislature justified these caps on the grounds that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.”

But in 2014, the Florida Supreme Court held this justification was largely unfounded and held the caps were unconstitutional. The Court noted “there was no concrete evidence to demonstrate that high malpractice premiums were the cause” of doctors leaving the state. And while “medical malpractice premiums in Florida were undoubtedly high in 2003,” when the legislature adopted the caps, there was no rational connection between those price increases and the absence of any limits on victim compensation. Indeed, there was evidence to suggest the malpractice insurance “crisis” was “nothing more than the underwriting cycle of the insurance industry” itself.

Holding Doctors Responsible for Medical Errors

When it comes to serious medical mistakes that injure and kill patients, too many physicians are inclined to blame everyone but themselves. As Dr. Lawrence Schlachter, who has the distinction of being both a surgeon and a malpractice attorney, put it in a January 2017 opinion piece, “When a serious preventable medical error occurs, the physician who made it always has the option to do the right thing and fully disclose what happened.” That includes not just making an apology, but engaging in a good faith effort to compensate the victim for their injuries. “Anything less,” Dr. Schlachter noted, “is a pseudo-apology at best and a cover-up at worst.”

Of course, one cannot expect the medical industry to abandon its culture of denial and victim-shaming overnight. That is why medical malpractice lawsuits remain a necessary and important tool for victims and their families. If you have been injured or suffered a loss due to medical negligence and need advice on what steps to take next, call the medical malpractice attorneys at Dolan Dobrinsky Rosenblum Bluestein, LLP at (305) 371-2692 or contact us online today to schedule a consultation.