How to Deal with Medical Malpractice

Dr. Joe DeLoach: Keeping patients happy prevents them from taking actions that in many cases have nothing to do with the relationship with them. So that’s number 1 on my book now. Number 2 does become document, document, and document. Cause we heard that probably within the first 6 months of Optometry school and it’s just true. You have to have an accurately, completely, and correctly documented medical record because if you have to defend your care, that’s it. That’s the only thing that defends you.

Dr.Bethany Fishbein: Hey, this is Bethany Fishbein. I am the CEO of the Power Practice and host of the Power Hour Optometry podcast. And a couple of weeks ago, we did an episode talking about all of the things that we have to worry about in an office from a safety perspective. From a patient having a medical emergency to someone coming in threatening or executing violence. And now that we’ve had a couple of weeks to come down from the anxiety of that, today we are talking about malpractice. And what led to this is we work closely with our clients, we develop really strong, trusting personal relationships and every once in a while, we get a call from a client who is generally upset. Freaking out a little bit that either they saw a patient and everything seemed fine and then a couple of weeks later, the patient had a problem again went to another doctor and was told something was going on that they should have known about or they realized themselves that they screwed something up and start to get concerned about, “What if I get sued?” So that’s what we’re talking about today. My guest is Joe DeLoach. Back on the Power Hour. Joe is from Practice Compliance Solutions and not a sponsored podcast here but I’ll give him a little plug. When you think about compliance, or at least when I thought about compliance, I really thought about HIPAA. But what I’ve learned in talking to Joe and getting to know him a little bit, is that there’s all kinds of things that we should be compliant about in practices. HIPAA, OSHA, employment things, insurance things, and all kinds of other things to being aware and on top of those is something that you can do to make sure that your practice is safeguarded. So he’s kind of a go-to person when I’m thinking about something scary in the office and who’s going to know about this. It is Joe. So not sponsored. There’s my plug. But Joe, thank you for being here with me. Did that introduction do you justice?

Dr. Joe DeLoach: Probably more than I deserve.

Dr.Bethany Fishbein: You deserve it all. This is good. So, just to talk about malpractice. It’s something we hear a lot about in other areas of medicine, right? In plastic surgery, I mean in ophthalmology, all kinds of other medical specialties, but we don’t hear or talk a lot about it in optometry. Other than you need to have malpractice insurance or professional liability insurance and here are the limits. Is it something that optometrists need to be super concerned about?

Dr. Joe DeLoach: Super, that’s an adjective. We should definitely be concerned about it. Fortunately, in optometry, the incidence of a malpractice settlement is pretty dadgum low and extremely low compared to other specialties or sub-specialties inside the whole healthcare spectrum. I can give you the percentages. You know I hate statistics. So I’m getting ready to tell you that. You know according to there’s a report from a group called Waterloo and they can you know survey the National Practitioner Data Bank where all seven months for malpractice resides so it’s all public information and get those statistics. And actually, optometry only had about a 2.5% malpractice but that was over an 11-year period. So your likelihood of a malpractice incident is really quite low. That study was also isolated to Texas. But they also found there’s almost no difference in incidence between different states. Even the states that have a much higher scope of practice. The rate is still not very high. But as I said, I hate statistics because if it was one-half of 1%, it becomes 100% one at you. And so these definitely are the things that you have to protect yourself from even though the incidence is low the outcome can be very, very severe. That’s why we have insurance.

Dr.Bethany Fishbein: Yeah, so I think that’s true. Like the right incidence can be 100% but if it’s you, right? Or it can be 99.5% but if it’s you, it’s 100%. And I know personally, in the exam room or just outside the exam room, kind of that feeling that you get when you get a letter from a lawyer that honestly really usually has nothing to do with you. The patient was in a car accident that had nothing to do with their vision and they’re just requesting records from every single doctor they’ve ever seen ever. But that lawyer, return address, and your address on the envelope and it’s like you start kind of analyzing because it doesn’t ever happen to us. So, it’s terrifying.

Dr. Joe DeLoach: Yeah, it gets those feelings going of self-doubt which we all have, you know. It’s always, “What? Did I do that right?” or “Did I miss something?” And, you know, we always have to practice to our highest level and be competent and do all these things correctly. But those kinds of feelings we really, hopefully, don’t have very often. Because we shouldn’t doubt ourselves especially if we know we’re doing the right thing. Those kinds of feelings just really are not positive at all. So it’s really more a matter of malpractice of doing everything correctly. It’s proactive. It’s prevention instead of reaction and that’s true of a lot of things that we do. You know even in other compliance and scary issues. It’s really more about prevention than it is a reaction when it happens. Because as you’ll probably ask me later when we talk about what really happens, the sequence of events and reaction is a little bit out of our hands at that point. So we just want to practice like really, really good, ethical, competent doctors and most of this is kind of out of our hands.

Dr.Bethany Fishbein: Yeah. So I will ask about that. But let’s talk about prevention first because that’s a good place to start. And that’s something you can be doing every day so that if this ever does come to pass. Well, I mean, prevention does two things, right? It decreases the chances that this will ever happen and it protects you if it does. So what’s involved in prevention? What does that mean when it comes to malpractice?

Dr. Joe DeLoach: Well, I couldn’t have said that better because it does do two things. It does prevent and defend both. And I gave a lecture on this and my slide used to say the number one thing is document, document, and document. But I’ve actually switched that and I have a new number 1. And my new number 1 is to keep patients happy. And that’s really true of most all of these scary things out there. Because I think you said in the beginning you know, sometimes these things happen not really because the patient is mad at us. They’re mad at something but their actions get directed to something else, a malpractice claim negligence claim, or a HIPAA claim. It doesn’t matter. But they’re just wanting to get back at somebody for something and oftentimes, it’s not even us. So keeping patients happy prevents them from taking actions that in many cases have nothing to do with the relationship with them. So that’s number 1 on my book now. Number 2 does become document, document, and document. We heard that probably within the first 6 months of Optometry school and it’s just true. You have to have an accurately, completely, and correctly documented medical record because if you have to defend your care, that’s it. That’s the only thing that defends you. Yes, they will depose you and you can say, “Well I did do this.” or “I was thinking that.” and immediately the plaintiff’s attorney will say, “Show me on your medical record where that happened.” And if you can’t do that, you truly are defenseless. So document is number 2. Number 3, we kind of already said already. It’s like being an ethical competent doctor. And when you always kind of do that and put the patient’s interests first, typically you don’t mess up. Hopefully, later, you’ll ask me about what happens if we do mess up kind of internally, but I think we’ll get to that. And then the last is when you practice you need to protect practice at the level of your scope. So you can get in just about equally trouble of practicing above your scope or below your scope. Because by law, we’re supposed to practice to the level of our competency and our training and our scope, and that’s what you’ll get judged against. So you don’t want to go over and above you don’t want to go below either. You do those things. There’s a couple of other tips. I guess I can also tell you. You know, when I said keep patients happy, I would put in there be kind of slow to divorce a patient. This probably gets talked about a lot. But I think there’s a significant over tendency to, “Oh, this patient’s not doing what I said.” or “This patient was whatever so I’m going to divorce them.” And the number one thing that happens there is you just set up an adversarial relationship with the patient. They become unhappy and it can allow these kinds of things to happen. Last, and I always say this when you’re reluctant or kinda, and it’s never be hesitant to get another opinion. But I don’t want that to lead to over-referral which is a big thing with me. We second guess ourselves too much and ask for second opinions on things that really don’t need to be asked about. But be sure you do that if you truly aren’t confident in what you saw and what you found and what you decided. There’s always someone else you can ask. That doesn’t necessarily mean the patient has to go somewhere else. You can always pick up the phone and just have a talk with someone.

Dr.Bethany Fishbein: Interesting. Some of the things that kind of stick out from that, that it all makes a circle, right? That if you’re being a good competent doctor and sometimes having those doubts and fears every once in a while is what keeps you being a good competent doctor. So a little teeny bit of that I think is healthy, right? That we read, study that, or learn or be better. And then sometimes it’s like with a second opinion going with what a patient is asking for so I get not under referring or over referring. But certainly, if the patient is asking for it, then being willing to say, “Yes, of course.” I get this because I think about the patients who sat in the chair and they love to tell you if they’re suing someone else, right? Or they’ll say you know, “That Neuro I should sue him. He’s a cocky whatever.” Like it’s some personality characteristic that they give. It’s hardly ever you know, “He’s such a nice guy but he just missed this clinical finding.” They never say that. They talk about how much they don’t like them or who they are. You know, “He thinks he knows it all. Well, my lawyer is gonna show him.” It’s true.

Dr. Joe DeLoach: Yeah, it goes back to that very first thing I said about keeping patients happy. And this is part of being a doctor. I don’t know where but somewhere back in the ages, doctors were put on this ivory tower or pedestal and they can’t make mistakes or they were not allowed to make mistakes. I mean we all make mistakes. I’ve made them. I have a whole lecture I give on Anterior Segment Disease that is comprised of all the mistakes I’ve made through the years and what I learned from them. We’re all going to do that. But we do have to keep those mistakes to the kind of mistakes that don’t have a bad outcome for the patient and learn from them. So we all get to be better doctors. But like you said, again, it starts with having really really good relationships with patients. Because I don’t think, in most cases, people that like you are going to take action against you unless you really, really messed up with something severe.

Dr.Bethany Fishbein: It might be premature to ask this but when you’re talking about things that you’ve screwed up or mistakes that we’ve made. Just making a mistake doesn’t really always constitute malpractice. It might delay treatment by a couple of days or something. But maybe it’s a good time to just define malpractice a little bit better and what that means.

Dr. Joe DeLoach: Yeah, there’s, you know, if you start researching it. There’s probably 100 or 200 definitions of malpractice. Drill down through them. They all pretty much say the same thing. So a lot of the research I’ve done goes to a group. And I sometimes, I can’t remember the name. It’s the American Board of Professional Liability Attorneys. So I figured they were pretty much or are probably the authority on a lot of this stuff. And if you read them, they talk about what constitutes malpractice. Now malpractice in its simplest definition is negligence that results in an injury. But those are very broad terms. So they pretty much drill it down to the, you have to have three main components for something to be declared as an action of malpractice or bad practice. One is it’s a deviation from what a prudent doctor would have done and usually, it’s a deviation from what a prudent doctor would have done in a similar situation with similar training and background. So it really is kind of a judgment of you against your peers and what they would have done in that situation. That action needs to have resulted in harm or injury to the patient. That’s the second component and those have to be tied together. So whatever you did or didn’t do had to result in injury. But then there’s a third component that says that the injury has to result in substantial harm to the patient. And that’s where any of the definitions get really screwy. Because words like significant and things like that mean totally different to one attorney, to one court, to one judge, and to one patient. That’s where we grew terms like pain and suffering and things like that. It’s just very very ambiguous. If you look at their examples, they give very concrete examples like loss of limb, loss of ability to be employed, loss of function of some body part, and things like that. So those are the three components. You acted out of standard of care or negligence that resulted in an injury that resulted in harm to the patient.

Dr.Bethany Fishbein: Okay, so that’s kind of helpful right there. Because there are times when we’ve. Well, everything you’re saying is helpful. Sorry, I didn’t mean to say it like that. But there are times when we’ve had that moment where it’s like, something happens that you don’t expect. You give an antibiotic for an ulcer and the patient has an unknown allergy to it. And so they come in and their eyes are swollen shut and they can’t see anything or it looks worse. But if that’s generally considered a first-line antibiotic and you check out with a couple of colleagues and they say, “I would have done the same thing.” That’s a bad outcome that’s not malpractice. So you can take a breath knowing even in your own head and putting it through those tests. So you know, in those moments where it happens, right? In the exam room, you find something yourself. The patient comes in with a complaint. You find a visual field defect and then you really look at the visual field from the last year or two or three and you’re like, “Alright. Now knowing this. Maybe there was a hint of something there. I wasn’t concerned about it. But now that I see this, I feel like maybe I should have been that.” You can kind of run it through those three questions and hopefully make yourself feel better or know if maybe there is a problem here.

Dr. Joe DeLoach: Yeah. It even gets a little bit trickier because it doesn’t. This is all a legal mumbo jumbo of what malpractice is. But in a minute, I’ll address where malpractice really occurs and it’s in a lawyer’s office. But when you really get into the nitty-gritty of this definition of what’s malpractice, here’s an example of what really technically according to the law would not be malpractice. Let’s say you have a patient that comes in and they’re complaining of blurred vision. You look in their eye. Everything’s fine until you look in the retina. And there’s a big old choroidal melanoma sitting, you know, just on the edge of the macula. And so you recognize this as a problem. But you say, “Well, I don’t. Let’s see it back in a month and see where it is.” And the patient instead goes and seeks a second opinion because you told them something scary was going on. They go seek another opinion and they go to somebody and they say, “Well, you have a horrible melanoma. It looks very bad. As a matter of fact, we’re going to do some systemic tests. Guess what you have cancer that has invaded your liver, your kidney, your spine, and your brain.” That actually would not be under the truest definition of malpractice be considered malpractice because even if you would have made the correct diagnosis, the end result would have been exactly the same. So you didn’t cause the harm is what it boils down to. So you can see it gets really really tricky. Having said that, though, all this legal stuff doesn’t matter. Because it really is how much is an attorney going to push for getting some kind of settlement or some kind of money. So even things that are truly outside the legal definition of malpractice end up on a complete paper as a complaint and sometimes even in court says a complaint.

Dr.Bethany Fishbein: So it depends, right? What happens with it once it leaves your exam room depends on the patient and the lawyer they find. Sometimes more so than what the actual thing was.

Dr. Joe DeLoach: Yeah. Everybody knows the term ambulance chasers and this is kind of what happens. They take something that in many cases, and I would say that a lot of times, even in most cases truly doesn’t fit the definition of really what malpractice is. But they know that the way the system is “rigged” that it’s pretty easy to get some kind of settlement for their client out of this and so they will proceed. And I’m sure you’ll ask me about that later. Probably.

Dr.Bethany Fishbein: Yeah, I’m gonna ask you about that pretty close to now. But not now. We’ll get there. I mean, let’s say it happens, right? But no, not even. It doesn’t happen. It didn’t happen yet. But a patient calls saying something like, “I saw you a month ago. I had floaters. You said everything looked fine. They got worse. So I went to my friend’s doctor. He says I have a retinal detachment and that probably there was something there a month ago that you should have seen. Can you send me my records?” Right? So they’re not threatening. They’re not suing. They’re not even vocally threatening. But they’re curious enough to want to see their own records or maybe have another doctor look at them. What should be your reaction at that point? What do you do?

Dr. Joe DeLoach: So first, again, we got to say if you are confident that when you saw the patient, you did appropriate care, that shouldn’t have happened. That’s the first thing you should kind of calm down about. Number two, you said medical record. I mean, anytime they ask for their medical records, you give it to them. Whether it’s just because they want it or because it’s involved in some suitcase or something like that. You always need to give that up. Whether or not you talk about this with the patient is when the courts are divided. I’ll just tell you, I’ve read articles where they say that “Yes, you should talk to the patient about this.” And I’ve read articles that say, “No, you should not.” The pros of talking to the patient are back to something we said earlier, which is not in the particular case you just described. But in some cases, they’re upset about something that really doesn’t have anything to do with what they’re claiming. And if you just have a discussion with them and they’ll say, “The reality is that optician you have was mean to me and or whatever. And so I don’t like what happened.” And you can now resolve what they’re really upset about. So that’s kind of the pro of it. The con of it is that if it truly does result in legal action, every word that came out of your mouth can just totally mess up your defense. Because we’re not attorneys and we don’t know the right words. We don’t have representation. And so the same Professional Liability Attorney group say that you should not discuss it with the patient and that you should actually get legal counsel first. And I don’t think that’s just because they want you to pay a lawyer. I think the answer to whether you should or shouldn’t talk to them, is probably not yes or no all the time. And so getting a lawyer to look at it and giving you advice on whether you should or shouldn’t is probably the best step.

Dr.Bethany Fishbein: But either way, you have to send the records. That is theirs.

Dr. Joe DeLoach: Absolutely. Either way, the patient gets records. 

Dr.Bethany Fishbein: Yeah. And then the balance goes back to keeping the patient happy and does the patient like you? And avoiding their call is one way to push the needle on that a little bit. But, you know, I guess it depends. If when you go back and look at your records for that case, is everything documented? Did you do all the right things or not?

Dr. Joe DeLoach: Yeah, and that kind of brings up the other questions too. Let’s say, this was just a bad day and you were behind and you forgot to document the peripheral retina and the chart. So what do you do now? Well, again, the record can always be addended and you can always go back and add things. What I’ve learned from talking to these experts is that you’re always told you can go back to a record, just make a notation in it, date it, and sign it. And that’s fine. What they say and if you are faced with a threatened or real malpractice situation, that they don’t recommend you to make an addendum in the record itself. That you make a separate like a separate piece of paper that explains what happened, what you did, why potentially you didn’t put it there, date it, and sign it. And keep that separate. You don’t want to be afraid to go back and add things that maybe you forgot. But by the same token, I would only do that if your own mission was significant and applicable. Because anytime you mess with the record after you’ve been threatened or sued, it’s a big red flag. So again, this would be another situation we’re probably going with the attorney’s opinion on this would be the best thing to do. 

Dr.Bethany Fishbein: What if they do that though? And like you go back, you look at the record, you documented, “Peripheral retina looks clear.” You open up your photos just to make sure and then you realize like, “Ah, there was something there. I missed it.”

Dr. Joe DeLoach: Well, once again, we miss things. We don’t want to do that very often but it happens. But you know, in that case, you can always go back and addend your record. Now in the situation you just described, I’m afraid your defense just went out the window. Because you have physical evidence that you know, you didn’t see something at the time and going back in later and saying, “I reviewed the photo, and there it was.” That’s not going to help you a whole lot in that situation.

Dr.Bethany Fishbein: Right. I mean that essentially shows that in that case, if the other conditions are met, if the retinal detachment caused an injury that lead to harm or whatever the steps are, then you did it. Right? There’s not a defense there to say that you didn’t? So if you see that, do you call a lawyer yourself? Or do you just? Although, so far in our example, all they’ve done is request the records. Do you just wait?

Dr. Joe DeLoach: So if all they did was request a medical record, I’m not sure you would do anything yet. If they threaten or you actually received notice of suit, then for sure that’s when you take action. But I wouldn’t get too paranoid about it unless. Here’s the thing. A lot of what that patient is going to do in that scenario you talked about is based on what that second doctor told them. So if that second doctor and you said they looked in there and said, “Oh they should have seen this a month ago?” Well, to be honest, in this particular case of retinal detachment, that’s totally their opinion. Because it may not have been there. It may have just been some traction there that two weeks later resulted in a tear. So they’re speculating and those are the kinds of things that ultimately get settled in an actual malpractice trial, which rarely happens. But the other doctor may have looked at it and said, “Well, you know, it was there. It may not have been there before. But let’s take care of it now and not worry about that.” So a lot of times the suits are instigated by what the second doctor tells them.

Dr.Bethany Fishbein: Yeah. So let’s say it goes to the next step. Right? So regardless of what you send over, they believe the second doctor. They go. They find a lawyer who says, “Yeah, I think we could get something out of this.” Sorry, I just made lawyers sound really predatory there. But you know, a lawyer who says, “Yes, I think you have a case here.” very professionally. And fortunately, for the majority of us who this has never happened to, what happens next? 

Dr. Joe DeLoach: Yeah. So this is where you take two very important steps and then you just sit back and do what you’re told. So there’s two people you need to call. One is your state board. And that’s typically part of every state’s licensing laws. You have to report. Now some people will say, “You only have to report if action is taken against you. And that may be a very valid claim.” Like there’s a settlement not that you just got sued, but that you lost a suit. And so you just need to check with your particular wording and your state licensing. But if you’re supposed to notify, even if you are, you know, sued, make sure you do that. But the most important thing is you have to contact your malpractice carrier because they are the ones that are now in control. They are the ones that said they’re going to protect and defend you. They will assign a lawyer to you. And I’ll address if you should get a lawyer in a second. But they will assign a lawyer to you and that lawyer is now your coach. They’re in charge and you do every single thing they tell you to do at that point. Now, remember, that lawyer works for the insurance company. They don’t work for you. They’re actually not even technically defending you or representing you. They’re representing the insurance company. And so their actions will be very much geared by what is the best outcome for the insurance company. Even if that may not be the best outcome for you. So that brings up should I get my own attorney? And of course, opinions abound on this one. But number one, I will say it’s going to be very expensive. Number two, most of the time it is not going to affect the outcome one way or the other. Number three, the reason you might want to do it and spend the money is just to be sure. I mean you still have rights and you would want to know those rights are being protected. In this case, and again, the insurance company’s attorney doesn’t work for you. They work for the insurance company. So at least consulting with another attorney may not be a bad idea. But again, it rarely is going to affect the outcome.

Dr.Bethany Fishbein: So Joe, just to make sure that I’m understanding this right or thinking the right thing. So if an attorney is working for the insurance company, they’re working in the interest of the insurance. That’s where stuff happens. Like if they know that in whatever is going on. It’s going to be cheaper for the insurance company to settle for some amount than to pay the lawyer some bigger amount. If it goes to trial, they are more likely to settle because that’s in the best interest of the insurance. But then you as the doctor in a situation where every single time you fill out an application for anything that asks, “Have you ever been sued or whatever?” You’re saying, “Yes.” because you lost? Is that what you mean?

Dr. Joe DeLoach: So that’s kind of two questions. One is the issue of settlement. And I don’t have the direct reference in front of me right now but in all malpractice plans, 98% are settled. So in every single situation where someone sues the doctor for malpractice, actually a little less than 2% ever go to trial. Now there’s a reason for that. And the number one reason is the cost of defense. And so you said it, the insurance company makes a determination that it’s better to settle some monetary amount with the plaintiff and put an end to this and it will cost them less. So remember, they are making the decision based on the better good of the insurance company, not you. Now the result of those actions. The second fear they have is if it actually goes to court. Because juries are strong and in malpractice claims historically, the jury strongly sides with the plaintiff. It’s the big rich doctor against the poor patient that was harmed. And it just rarely goes well at all. The insurance company knows that. They have all those statistics and they have a significant interest in trying to put this to bed and not settling. So the trickle down from that for us, as doctors, is now our record is tainted. And we may have done something wrong and unfortunately, it may have been that side effect of the antibiotic that really is not malpractice. But even in that case, it’s cheaper for the insurance company to write a check to the plaintiff and be done with it. And you’re like, “I did nothing wrong.” And it’s right and it really is terrible at that point. Because as you said our records are now tainted Now, having said that, I think there’s a misconception that if you have some type of malpractice settlement against you on your record, like your career is over. And that is far from true. It’s not great. You don’t want it. But your career is far from over. If you get outside of optometry where it’s not 2% of doctors, it’s way up there. Like I think there’s one statistic in ophthalmology that says that 95% of all ophthalmologists will be sued in their careers. So almost 100% are going to get a malpractice claim against them at some point. That doesn’t mean they’ll all lose. But remember 98% of those are going to settle. So outside of optometry, a large percentage of the healthcare population has a malpractice suit against them on their record. They’re still on the panels. The panels just don’t like automatically say, “We don’t want you anymore.” Now some of it can be dependent on exactly what the specifics of the case may be. And they actually look at that. They don’t just go, “Oh, you have a malpractice settlement against you. We don’t want you.” So it’s not the end of the world. It’s not great. But it’s not the end of the world.

Dr.Bethany Fishbein: And I mean, I’ve heard it said not in optometry but like you said outside optometry where it’s much more common. It’s like, “Yeah, that’s why you have malpractice insurance.” Right? And I’m sure that in those industries where it’s 95%, their malpractice insurance isn’t quite as inexpensive as ours in optometry. Because the cost of malpractice for millions of dollars of coverage is usually depending on your state, I guess. But it’s under $1,000 a year. It’s not a lot.

Dr. Joe DeLoach: Again, back to this Waterloo study. We have literally probably the least expensive malpractice insurance in all of healthcare. And I think there’s a couple of reasons for that. And one of them is we just have to pat ourselves on the back and that is we do a dadgum good job. And I would also say that our dadgum good job is optometrists, as a rule, do form bonding relationships with our patients. So patients like their optometrists. And so we’re back to that again. And I think that’s really one of the reasons we don’t get sued as much. Because it’s not like we’re the smartest profession on the planet. We’re doing good but we make mistakes. But we still don’t get that many suits against us. And somebody might also say, “Well, you don’t do anything that’s risky either.” But you didn’t ask this and you might be going to but it’s like, “What are the most common malpractice claims?” And they’re not treatment of the patient. 70% of all malpractice claims are diagnosis driven. So we all have the same obligation to diagnose. That’s not different between us and ophthalmology or any other specialty. But 70% of all malpractice claims is we miss something. Few of them are related to, “The antibiotic made my eye red.”, or “You operated on the wrong eye.”, or “You did an SLT and I got this or that or the other.” It’s mostly that we fail to diagnose. So evidently, we do a pretty good job there.

Dr.Bethany Fishbein: So in these cases where something goes wrong, the patient finds a lawyer to take their case, and you get sued for malpractice. You know because you’ve heard this podcast that 98% of those suits are going to end up settling. I’m going to throw it out there that the third call should be to your therapist. How long does it take to get to the end of this? Where you can put that behind you? I know what you’re gonna say and it’s way longer than I think that people would have a tolerance for. But how long does it take?

Dr. Joe DeLoach: Yeah, the answer may justify why you said that the third call should be your therapist. Most cases take 1 to 3 years to settle.

Dr. Bethany Fishbein: Years? That’s crazy!

Dr. Joe DeLoach: Years. Yeah. This is gonna be hanging on your back for quite some time. The length of time is related to the heavy docket case. And the next one is it just takes a lot of time for the defense and the plaintiff side to gather all their information. That is 98% of the time, driven on, “Do we settle or not?” And not to say anything, you know, terribly negative. Although I guess I can’t say it without it being negative. But from strictly a monetary stance of the legal side of things, there’s a very good reason why they want to drag this out. It’s more billable hours. So that is a nasty thing to say. But these things just don’t move quickly. That’s the bottom line. So yeah, well under three years is the stated average. And that’s no fun.

Dr.Bethany Fishbein: And while you’re going through that and waiting on that, what kind of actions or activities would be required of you? Is there stuff you have to do in there?

Dr. Joe DeLoach: Well, you’re going to do everything that attorney asked. But what they’re going to ask is obviously they’re going to want all applicable records. They will probably want things about your training, documentation, and things like that. But the main thing that’s going to happen at some point is they will likely depose you. So you’ll get to sit in this. If you’ve never been deposed, this is where you don’t need a therapist unless they’re licensed to provide anti-anxiety drugs. Because a deposition is a horrible thing to go through. And you get to sit at a table. There will probably be anywhere from 2 to 10 lawyers at the table. And it’s just kind of like what you’ve seen on TV. If you’ve ever seen people deposed on TV. I mean, they ask questions, the lawyers are whispering in each other’s ear, your lawyers telling you what to say, and not say. It’s just so horrible. And these depositions can go on for hours and sometimes days. But that’s probably the worst part of the whole thing. And then after that, honestly, you’re really kind of out of control because everything is run by the insurance company at that point.

Dr.Bethany Fishbein: And let’s say, it does get settled. Or it’s one of the small percent that goes to court and you lose. Just to wrap this up. At that point, so the patient gets a settlement. So they get money. That money comes from your insurance carrier, not from you, right? I mean, I think the question that people get is kind of or where your brain jumps when you open that picture and realize there is a tear there and “Oh, maybe I did this right.” or even if you didn’t, is “Am I done for? Am I going to lose my license? Am I going to lose my practice?” But really, in reality, what happens?

Dr. Joe DeLoach: Well, so number one, who’s going to pay? And you did say the correct thing. In most cases, that’s why you have malpractice insurance. And in most cases, they are going to be the ones that cover that ultimate settlement against you with one exception. And it’s the same exception like in having cyber insurance against a ransom attack. They’re insuring you based on them assuming you are doing legal things. So you can never take out insurance for breaking the law. So if you’re in a state that doesn’t have laser privileges, and you decide you want to buy an SLT, and start firing away, and something goes wrong, and you get sued. Your insurance company is not going to back you in that case because you are outside the law. Now, obviously, most people are not doing that. I just don’t want to make it sound like you know, “I can just do whatever I want to and my insurance carrier is going to cover me.” Not the case. Beyond that to the more, I think kind of internal psychological answers to, “What do I do with myself at that point?” And number one, and this is possibly the hardest one if they settled against you and you know for a fact you’d absolutely did nothing wrong. The major feeling is probably going to be anger. You’re going to feel wronged and it’s justifiable. But your anger and your angst and all those things are not going to change the way the system works. And you will not be able to fight the system. You will not be able to, as a matter of fact, some people have said well, “I’ll just sue my insurance company because they did me wrong by settling.”And if you read your policy, most of the policies state you don’t even have the authority to do that. They didn’t get a case. They are the ultimate decision maker and you really have turned that over to them. But in the second one, which is a little more of a heart problem, and that is you realize you did do something wrong. And that’s tough. That’s really tough because none of us want to mess up. We all want to be the perfect doctor. And like I said, fortunately, most of us are gonna go through our entire career and never have to go through this. But if you do, you know, all I can say is you just have to get over it. And you can’t let this ruin your career. At some point, you have to be okay with yourself. Because the patient was wronged, they went through the system and got what they deserved because you were negligent, and it created harm. And so yes, you kind of have to pay for that. But at some point, you have to go internal and say, “Okay, I messed up. I didn’t do right by the patient. I’m going to do take whatever steps it makes it I don’t make that mistake again. And I’m going to be a better doctor and move on with life.” And I make it sound like you know, it’s just so easy to do that. And obviously, it can’t be that easy to do that but you just have to you have to get to that point where you can go on and be a better doctor because of it.

Dr.Bethany Fishbein: I mean those things like, “Yeah, it’s not easy.” And those are things that you have to deal with. But they’re things that you have to deal with within yourself. But either way, you get up and go to work in your practice on Monday. And so it’s not a never being able to practice again, losing your livelihood, and having to find a new career. There’s some internal work back to call number three, the therapist. But you continue doing business. Unless you know there’s like a board pattern. Like a pattern that ends up drawing the board’s attention.

Dr. Joe DeLoach: I think the number one thing you have to do is find some way to eliminate self-doubt. And you have to do that probably by going back and educating and taking time to make yourself better and re-educate yourself. Because if you maintain self-doubt, you’re gonna make a mistake again. If you practice under fear, you’re gonna mess up and so that has to be eliminated. I think the harder part is eliminating the fact that you did mess up and someone was harmed by your actions. But you’ve got to get rid of this self-doubt and be a better doctor and move on.

Dr.Bethany Fishbein: It’s a great place to stop Joe. This is educational and important. And just because the incidence of this actually happening to any of us is so low, it’s not that we’re sitting around swapping stories with colleagues. And when something like this happens, I know a lot of doctors in these situations feel like you know, it’s not something you’re gonna go post on social media like “Hey guys!” And so people isolate themselves a little bit. So it’s good to have this as a source of information. Hopefully, a little source of comfort out there and just a resource for a what if. So, thank you tremendously for spending the time to put this out there with me. I think it’s good information for people to have. It’s not something we think about or know a whole lot about, fortunately, and this was kind of just enough. So thank you so much for doing that.

Dr. Joe DeLoach: Thanks for having me. Anytime we can help.

Dr.Bethany Fishbein: Yeah, and Joe, if somebody needs help or wants to reach you, what’s the best way for them to get in touch with you?

Dr. Joe DeLoach: Well, my email is always the best. That’s joe@pcscomply.com Definitely interject that I’m an optometrist, not an attorney. But I think sometimes people that have kind of research this are just a good starting point anyway.  I’d be glad to provide information.  A lot of times in malpractice, that may be you just need a good attorney, but not bad for a good starting point to ask someone like PCs for advice.

Dr.Bethany Fishbein: Great. Thank you again. And for those out there, for more information on us, you can always visit www.powerpractice.com Thank you again for listening.