Robert M Fleisher DMD
BA (Psychology) Attending Staff Albert Einstein Medical Center
Philadelphia, PA USA
Foreword Jeffrey P Bates JD
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From Waiting Room to Courtroom: How Doctors can Avoid Getting Sued
First Edition: 2016
9789385891519
Printed at
5Dedicated to
The awesome responsibility of educating those who come after. With deep gratitude, I dedicate this book to my teachers, colleagues and students, who taught me everything I have to offer. This book would have no meaning without my wonderful family and dear friends who have helped me through life's journey and have had to put up with my constant lecturing. For Andrew and Alison, Marc, Asher and Sierra.6
7Foreword
I have been a practicing attorney for over 25 years. All of my experience has been in litigation, which is trial practice representing clients in courtroom matters. For more than 20 years, my time has been almost exclusively devoted to representing doctors and other healthcare providers, defending them in malpractice claims and administrative actions which have been brought against them. I have seen that healthcare providers can sometimes be their own worst enemies. Healthcare providers often make the situation worse by getting involved and making statements which can later be used against them. In addition to hiring counsel to represent you when a claim has been made, there are a wide variety of other services available to you to protect you as you move through your practice years. One of those services is Dr Robert M Fleisher's book, From Waiting Room to Courtroom: How Doctors can Avoid Getting Sued. This book provides an invaluable tool to doctors and other healthcare providers to make them think about their day-to-day practice and steps that they can take to make every effort to avoid mis-steps both in their daily practice and in handling claims or potential claims.
Dr Robert M Fleisher has taken a very large subject and tried to make it manageable to all. The general statements contained in this book with regard to how to operate and manage your practice on a daily basis are, in large parts, pearls of wisdom which can easily be implemented.
Jeffrey P Bates JD
Marshall, Dennehey, Warner
Coleman, and Goggin
Villanova University School of Law, JD 1989
9Preface
There are some good doctors who have done nothing wrong, been sued and lost their cases. There are some bad doctors who have committed malpractice, been sued and won their cases. And, there is every combination in between these two extremes. The point is that any healthcare provider can end up in court only to find that the experience is stressful, demoralizing, not always fair and totally foreign to one who has dedicated his/her entire life to help make patients well.
The best advice… make every effort to avoid being swallowed up in the world of malpractice litigation. By learning how the system works and by following the ideas, methods and instructions found in From Waiting Room to Courtroom: How Doctors can Avoid Getting Sued, the healthcare provider can expect to reduce the chance of ending up in the courtroom. If all efforts fail, and the courtroom becomes inevitable, it is best to know that your defense began before you ever met the patient.
By using protective methods of practice you can mitigate the claims of malpractice and tilt the odds of a successful defense in your favor.
The lawyers who will come after you know how the system they created works, shouldn't you?
11Acknowledgments
A special thanks to the six patients (out of 35,000) who sued me (unsuccessfully) and allowed me to have indignation for a system that seemed out of control and corrupt. Experienced as a clinician, a defendant and an expert witness, I now pass on to future generations of healthcare providers what I have learned by being obsessive, compulsive and paranoid.
It must be noted that this book would not have been nearly as accurate or politically correct without the extraordinary guidance of one brave attorney, Jeffrey Bates, who was willing to offer advice, critique and wonderful legal perspectives to make this project a success. Jeffrey's exceptional expertise is profoundly appreciated!
15Introduction
Many years ago in an enchanted land called America, there was a time when doctors sat upon pedestals and the chance of getting sued was miniscule. Since people did not like to sue those sitting on pedestals, it took a generation of lawyers to convince the public that healthcare providers not only did not belong on those pedestals, but also that they were, at times, actually incompetent, evil and deserved to be punished. Over and over again, we heard commercials telling us we needed to “get what we deserve” from doctors who made all those mistakes. Yes, the doctors were incompetent and, at times, even evil!
Malevolent behavior is the basis for the doctrine of punitive damages. Originally designed to punish large corporations that might not change their bad behavior from fear of losing comparatively small lawsuits, extremely large punitive damage awards got the job done. No longer would a company continue to manufacture defective products while factoring the loss of most small lawsuits into its expenses. A punitive damage award could not only make the corporation change its business practices, it could literally put it out of business. Pretty soon the lawyers realized they could take the same action against healthcare professionals once they knocked them off those pedestals, and it does work in the most egregious cases.
The practice of healthcare has become risky to the point that all providers have the chance of literally losing their homes, their cars, their bank accounts and just about everything they have worked for over a lifetime of practice. Much has changed in the legal system as well as the attitude and mindset of the public to make this possible.
What was once a means to make a person reasonably whole from injury (called compensatory damages), including compensation for medical care, lost wages and pain and suffering, has grown to such a level of sophistication that even the compensation values have reached astronomical heights.
Using all sorts of expert testimony by creative actuarial accountants and psychologists who can add emotional injuries to just about any type of claim, the valuation of some cases has forced court awards to rise beyond the limits of many practitioners' malpractice insurance. As the number of lawsuits and the size of the awards have grown, the cost of malpractice insurance has escalated to keep pace. All of these changes have caused healthcare costs to skyrocket, inordinate risk to healthcare providers and excessive tests and treatment for the public.
The law and legal reform are not likely to change very soon which leaves healthcare providers with the need to learn what to do after, and especially before, a lawsuit is instituted. The ability to practice defensively has never been more important.
Not too many of us know about stories where a provider loses everything because, fortunately, they are not common and it is not something one wants to tell the world. However, people do lose everything, and if it happens to you, it is very scary. You do not want to regret not being proactive in protecting yourself from the predatory nature of the legal system.