Winning a malpractice lawsuit requires more than proving your treatment was appropriate, prudent, and 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, co-founder, past medical director, and now a senior consultant for The Doctors Company, one of the largest physician-owned malpractice insurers.
“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 (Plast Reconstr Surg. 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 colleagues 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, writes the Napa, Calif., physician. “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 reports, “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 suggests showing a little humility. “You may think no one can really feel your pain, but litigation professionals understand what you are going through,” he observes. You should follow their advice.
“When you are the target of a malpractice lawsuit, it is not very different than an illness,” Dr. Gorney counsels. “This time you are the patient. Although we all know that doctors make the worst patients, your own personality characteristics may determine whether the verdict comes back for the defense or [includes] several million dollars in punitive damages.”