Doctors and Litigation: The L Word

Richard Boothman, JD, is a trailblazer in patient safety and transparency, known for his pioneering work on the Michigan Model for addressing medical errors. In this engaging conversation, he reveals how the outdated 'deny and defend' approach fails everyone involved. Boothman discusses the necessity of Communication and Resolution Programs, advocating for a shift toward transparency and compassion in healthcare. He shares compelling stories that illustrate how embracing honesty can transform adverse events into opportunities for learning and improvement.

The first LEAP (Litigation Education and Performance) Course for Clinicians will run from March 17th through June 2nd, 2025. This is a hybrid online course, 1 h/week self paced videos and 6 live virtual review and Q&A sessions with Dr. Pensa, one of which will be an Ask-a-Lawyer segment with a seasoned defense attorney. These live sessions are spaced every other week, at varying times, and will be recorded if you can't make a session.  This is for anyone -- doctors, nurses, APPs, dentists -- any healthcare provider who wants to understand the litigation process, and how they can navigate it with skill and resilience.  We'll cover from getting named all the way to jury verdict, and all the possible stops in between -- along with many of the coaching techniques for performance Dr. Pensa uses with her 1:1 clients. *The course is eligible for CME and CNE credits, so use those professional funds for something really useful!* Check out the course here at https://www.doctorsandlitigation.com/LEAP/signup Please share with anyone you feel could benefit from learning about what we were never taught in training about medical litigation!

In this discussion, Dr. Stephen Cohen, a seasoned general and colorectal surgeon with decades of experience as an expert witness, shares eye-opening insights into common pitfalls faced by physician defendants. He highlights significant mistakes in legal cases and the often-overlooked disparity between jury verdicts and actual medical care standards. Listeners will discover the emotional strains of depositions and the challenges of conveying complex medical issues to juries, as well as real case outcomes that illustrate the intricacies of navigating medical malpractice litigation.

Dr. Pensa explains why attention to your thinking, even when you feel your mental health is "good", can lead to personal growth and a more satisfying life. We all know the markers of excellent physical health, but what are the components of excellent mental health? Is it simply being happy all the time? Is that even possible? (Spoiler: it's not.)  Using functional fitness for the body as an analogy, we look at the importance of not waiting until your health is poor before making efforts to improve or optimize. Strength, endurance, flexibility, agility, speed, and balance are facets of both functional physical health as well as your mental health and thought processes that can be developed and strengthened over time with intentional practice. A person adept in all of these spheres can become more adaptable to life's inevitable challenges, and just like in physical health, learning to lean into resistance and some discomfort in lower-stakes situations will increase your capacity over time. The concepts of thought work and emotional agility are introduced.  Mentioned resource: Susan David's Emotional Agility 

Many of us have no idea who our medical malpractice insurance carrier is, let alone the details in our policy.  But this ignorance can have huge consequences when it's time to face a claim, and it's better to go into that challenge with your eyes wide open.  On this podcast, Dr. Pensa speaks with John Shufeldt, MD, JD, MBA about things that every doctor or other patient-facing clinician should know about their insurance coverage, which can vary tremendously from policy to policy, and from insurance company to insurance company.  So before you take a new job, or before you face a claim: have a listen, and learn about the questions you've got to ask. 

Physicians and other clinician defendants whose cases go to trial (roughly 8-10% of malpractice cases) usually have little understanding of the legal events and strategies involved, which naturally amplifies their anxiety. Today on the podcast, we'll continue to address these knowledge deficits.  Decisions made about how cases proceed are usually made by considering how the 'optics' of a given case will look to a hypothetical jury -- but when trial begins, at jury selection and the voir dire, that once-hypothetical jury will be come real flesh and blood laypeople, who have their own ideas, perspectives, biases, likes and dislikes. And they will decide how this long legal saga ends and which side prevails (barring any appeals, which unfortunately Dr. Pensa is very familiar with.)  In this podcast, we talk to Shari Belitz, Esq., a trial and jury consultant, about the importance of jury selection and the strategies involved. Ms. Belitz is the CEO and Owner of Shari Belitz Communications. She is a seasoned attorney who then trained in forensic psychology before launching her career as a trial consultant and strategist.  We talk about why the jury is all-important in case outcomes, the strategies attorneys can deploy during the voir dire to try to select jurors who may be more inclined to side with their case, how attorneys can expose bias and strike jurors for cause, and the utility of mock juries and focus groups.  If you haven't listened to the Season One episode on Trial and Settlement, start there first.  You can learn more about host Dr. Pensa here.      

Matt Abrahams, an expert in strategic communication and instructor at Stanford, shares insights on effective messaging in litigation. He emphasizes the importance of anxiety management techniques like mindfulness and breathing exercises for medical professionals. Abrahams also discusses the value of structure and preparation when conveying complex medical information clearly. By introducing concepts like 'next play' and 'missed takes,' he encourages listeners to stay focused and grow from errors, ultimately highlighting the power of communication with empathy and clarity.

"A World of Hurt: How Medical Malpractice Fails Everyone" is a new documentary produced by Emmy-nominated physician-filmmaker Dr. Mark Brady and two medical students, Alex Homer and Viknesh Kasthuri. After a year of private screenings and film festivals, this powerful piece was recently picked up by PBS after winning multiple awards. It is now free to watch online (links below).  In under 27 minutes, this short documentary tells three stories: a plaintiff whose sister dies after a medical error; a physician whose life is decimated by a malpractice allegation; and a couple whose baby dies in the hospital, but seeks a non-traditional route for closure.  Dr. Pensa, who appears in the film, turns the tables and interviews the filmmakers in today's podcast. They discuss what it was like making the film during COVID, the difficulty of getting subjects to agree to filming, and how they hope this piece can be an agent for conversation and change.  Please watch the film and share widely. It is short, but powerful. Watch now: PBS: https://watch.ripbs.org/video/a-world-of-hurt-how-medical-malpractice-fails-everyone-uklpuo/ YouTube: https://www.youtube.com/watch?v=09IVcL6pACU You can find Dr. Pensa at doctorsandlitigation.com

The phrase "nuclear verdict" strikes fear into the heart of any defendant - and today we're going to tackle it head on. We welcome Dusty Otwell, JD, medical malpractice defense attorney and Chief Risk Officer of UCACS, to the podcast to discuss “nuclear," "runaway jury," or aberration verdicts. These are jury awards to the plaintiff, given at trial, that well exceed predictions. They tend to make headlines, create fear among doctors and other providers, and lead other parties to dream of giant jackpots. In this episode we discuss: Societal trends that may be fostering the increase in aberration verdicts How we can mitigate our fear around the possibility of an aberration verdict What happens after an aberration verdict: post-trial negotiations, and real-sizing the risk to your personal assets Why defendants should feel empowered to speak up, request preparation, and ask for 'financial risk estimates' The ‘reptile theory’ deployed at trial by plaintiff’s attorneys, and how tapping into the general anger in society fuels their persuasion Why and how defense teams need to evolve to combat these tactics  Now, more than ever, preparation of the defendant should be paramount and start EARLY in the case. More about host Gita Pensa, MD, can be found at https://doctorsandlitigation.com/ Dusty Otwell is vice president for claims and risk management at US Acute Care Solutions. He also serves as Chief Operating Officer and Corporate Secretary for Clinician Assurance Risk Retention Group, the self-insurance carrier for USACS. Previously, he was associate general counsel and director of risk management for Emergency Service Partners, a founding partner of USACS; a senior risk management consultant for ProAssurance Corporation, staff attorney for Maynard, Cooper & Gale, P.C., and staff counsel for Medical Reimbursements of America, LLC.  

There is a wealth of research to support a positive effect of mindfulness on the mental health and overall well being of physicians and other clinicians. This is well documented in spheres like burnout, job satisfaction, and overall well being (sample references below). Today on the podcast we introduce mindfulness as a cognitive tool that can be useful in litigation preparation as well. Today's guest, Douglas Morgan, is a seasoned medical malpractice defense attorney who incorporates the teaching of mindfulness into his work with clinician defendants.  Resources mentioned: Apps: JKZ, Plum Village, Headspace, Ten Percent Happier and Insight Timer (Dr. Pensa and Attorney Morgan have no financial ties) Mindfulness Based Stress Reduction and the work of Jon Kabat-Zinn Teachings of Thich Nhat Hanh References: JAMA Internal Medicine. (2019). Effect of a Mindfulness-Based Intervention on Burnout Among Physicians: A Randomized Clinical Trial.  The Lancet. (2020). Mindfulness in Health Care Workers: Benefits Beyond Burnout.  Journal of Occupational Health Psychology. (2017). Mindfulness-Based Stress Reduction for Medical Students and Physicians: A Systematic Review.  Annals of Internal Medicine. (2014). Mindfulness-Based Stress Reduction for Health Care Providers: A Systematic Review.