Dr. Ilene Brenner, MD- How to Survive a Medical Malpractice Lawsuit

This podcast features an interview with Dr. Ilene Brenner, MD.

Lately, I hear a rumbling with many physicians that they are more and more concerned about Malpractice lawsuits. Every doctor wants to avoid being sued, but few doctors know what the heck to do once it happens.

That’s why I thought I’d bring a special guest to the podcast, Dr. Ilene Brenner, MD the author of “How to Survive A Medical Malpractice Lawsuit- The Physician’s Road Map to Success”.

This interview reveals the following:

– The two most critical things you should do when you get served AND what you should never do (Hint: You could make the lawsuit worse by doing these two things!)

– The three questions you should ask a lawyer before you hire them & how to deal with your malpractice insurance company.

– How to deal with a malpractice lawsuit when you are part of a practice as opposed to a hospital

– How other doctors perpetuate the problem of malpractice lawsuits

– Learn what inspired Dr. Brenner to start her blog and where the real money is once you have your own platform

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TRANSCRIPTION

How to Survive a Malpractice Lawsuit with Dr. Ilene Brenner, MD

Dave: My name is Dave Denniston. Welcome to the latest episode on The Freedom Formula for Physicians Podcast.

Imagine waking up to a loud knocking on your door, it’s early in the morning. You don’t want to get up and so you ignore it. Then it continues and continues. Finally, you scramble out of bed, bleary-eyed, wondering what is going on- only to have a sheriff standing outside your door.

The sheriff apologies for waking you up only to hand you a letter, with a return address of a law firm. Your heart and your stomach sink.

Lately, I hear a rumbling with many physicians that they are more and more concerned about Malpractice lawsuits.

Every doctor wants to avoid being sued, but only a few doctors know what the heck to do once it happens.

That’s why I thought I’d bring a special guest to the podcast, Dr. Ilene Brenner, MD the author of “How to Survive A Medical Malpractice Lawsuit- The Physician’s Road Map to Success”.

Welcome Dr. Brenner!

Dr. Brenner: Hi, so good to be here. How are you?

Dave: Good I appreciate you making the time to be here today and of course you’re a physician as well as an author, so first just tell us a bit about yourself and your journey, what inspired you to become a doctor?

Dr. Brenner: Well I’ve always been into Math and Science and I actually was wanting to be an astronaut that was my dream. I remember watching the shuttle take off in elementary school and that looks such an amazing event and I was just fascinated by it and so I was very much rooted in Science and Math as my thing. And I kind of got geared toward medicine because my father is a medical malpractice attorney and he would come home into our dinner table and he will tell us about his cases and I was fascinated by all of the medicine and what happened and what doctors do and the science and just the whole bit of it and I ended up taking, doing an internship to see if this was something I might be interested in. Just being in the hospital I really enjoyed the interaction with the patients, I enjoyed the mystery of solving every cases, like a little detective story and that’s kind of what led me into it.

Dave: So the whole malpractice thing this is something you raised on at your dinner table?

Dr. Brenner: Yes, I was pretty much born into it and I would help him out on his cases because I was good at Science. I took more Science classes at an early age before my dad ever did it and in equivalent fit he was not rooted at science, he sort of bail into it, so I would help him out and he’d hand me a deposition and he would say “I’m looking for this, this, and this. See if you can find it, what do you think?” I mean he taught me into it that was probably in high school that I was doing that for him. So that was a pretty early experience that I got exposed to it.

Dave: And your dad paid for your medical school right? With all that nice background, free work you did for him?

Dr. Brenner: No, I got a thousand dollars and student loans for medical school.

Dave: Well tell me more about the book, you had this background and obviously you knew about it, this is something you’re passionate about, something you grew up with, what led you to write it? What prompted you to end up doing that down the road? I mean you became a doctor obviously and you went through that and that’s busy enough in itself, so tell us about that process.

Dr. Brenner: Well people think that it was because I went through being sued myself and that’s why I wrote it but that’s actually not the case. I did get sued, I won my case, I got sued again, that one got dropped. And I was done, like I was putting it away in a little corner of my mind and I was over it. What I discovered was after that, time had passed, I had friends who got sued and they were asking me all these questions and they didn’t even know the most basic things. And I was answering the questions, I was directing them to my dad and just all kinds of things. And it occurred to me that these really intelligent people are completely clueless when it comes to medical malpractice and that inspired me to start writing plus I’ve gone to a writing workshop for doctors because I’ve been wanting to get in to writing a book and getting some direction and I have a book idea that I had started and what I was told by the agents and the publishers who were at that course, they basically said “you need a platform if you want to write anything and I have a platform. And the best way to start is to start with your local journals and write articles and try to get a basic platform and an audience. Once you have that then re-approach us and we’ll be more likely to take your idea and publish it”. And that was very good advice and so I came out of that thinking “what will I write about? What will I write about?” because I was writing about Healthcare Reform, that was not at all the subject, it wasn’t malpractice. Once I started writing these articles because of my friends’ experience it occurred to me like “oh that’s what they mean by a platform. I can write about something that I know about that other people want to hear about. No one wanted to hear about health care reform but people definitely wanted to hear about medical malpractice and how to deal with it”. So the articles were very popular and eventually I was contacted by people in other specialties who came upon my articles from it being left in the doctor’s lounge or something and they said “we’d like a book because we can’t access your articles all the time because they were in an Emergency Physician’s Magazine but you should write a book and make it more detailed, I would really like that”. And so I thought about it and decide to do it.

Dave: First, let’s chat for a little while about WHY doctors get sued. We all know that we are in a litigious society and we all make mistakes from time to time. Take some time to reflect for me, what are the typical root causes of a malpractice lawsuit?

Dr. Brenner: Well there’s a whole host of reasons, one is you’re unlucky. Of course you, both of my cases I would say were not even remotely my fault but that doesn’t really mean anything, there’s so many factors. You’re unlucky, you have a one in a million side effect that happened to that one patient. Well just because that’s one in a million doesn’t mean that that patient doesn’t feel harmed, so they get angry and they sue. Sometimes specialists throw you under the bus, in fact not just sometimes, a lot of times. They are all high and mighty in their twenty twenty hindsight, and they’re like “that doctor should have treated you better, you should sue them” that happens a lot. So we’re actually to blame in medicine or for a good portion of the lawsuits, most, not most but I would say a large percentage of patients if you will ask them why they sued, somewhere along the line there was someone in the medical profession who led them to believe that they were wronged and it didn’t just come out of nowhere. Other reasons why we get sued: we’re so hurried and busy with documentation and we don’t spend enough time with the patients, they don’t get to know us well, they don’t have an attachment to us. Patients get lost in the systems so they want a fall guy and yes, I mean in the end the logical of course reason is we’re human and we do make mistakes. Now just making a mistake isn’t necessarily medical malpractice. Medical malpractice is when you deviate them the standard of care in your profession and everything is based on percentages, a certain percentage of people will have bad outcomes and bad outcomes aren’t malpractice. However a patient doesn’t necessarily see it that way and so since there are screening process in most states to eliminate lawsuits then if a patient feels like they are wronged, then they sue. It doesn’t mean they’ll win, in fact percentage wise doctors win most of the lawsuits. I don’t know the number off the top of my head but I think it’s like eighty to ninety percent of lawsuits are won by the physician. What a lot of people don’t realize is for us, for the physicians we’ve lost the moment we receive that letter and that’s what people are quick “doctors win all the cases, its obviously stuck towards the doctor” what are you complaining about? The problem is and I have a whole chapter dedicated to the psychology of lawsuit in my book, the moment we’re sued we’ve lost, even if we win the case, we’ve lost. Something has been taken from us that may never come back and that’s why a lot of doctors are in denial. More people should buy my book, it probably should be in medical school so people could read it before they even get to that. But people don’t want to read it, people don’t want to hear about it. I get emails all the time from people who have found my website who wanted advice because they just got sued. The problem is is my book is most valuable if you read it before you get sued and doctors are in denial. We don’t want to hear about the worst that can happen to us, we don’t want to deal with that possibility because once we acknowledge that then a part of us gets lost. And so it’s really the minority of doctors who are this proactive and will be like “oh well just in case I get sued I want to learn about it”. Most people are not like that, most people are like “well if I have to ever think about it then and only then”, so that’s usually when I get contacted.

Dave: So, let’s imagine that a physician is served by a sheriff or by a process server with that dreaded letter. What should they do first?

Dr. Brenner: Well the very first thing they should do is if they have an attorney, a malpractice attorney they should call that attorney immediately. And the reason is because once you’ve made that contact with the attorney, then everything that you do from that moment on turn to client relationship. And so it will help you out later when it comes down to depositions and they will start asking you questions you can say that your attorney can object saying “that subject to privilege because of our attorney-client relationship”. If you don’t already have a malpractice attorney then the very first thing you should do is call your insurance company because your insurance company will then get you an attorney. Then when you get your attorney then again that process starts. If you call your attorney first then either your attorney or you have to call your insurance company. That order can vary like I said one to two or two to one but either way those are they very first two things that you should do. Call your lawyer, call your insurance company. If you do anything else, go on a website, pick out a book, try to research it, you are harming your case. Do not do anything, don’t talk to it, don’t talk to anybody, don’t ask to pull the medical records, don’t look at it online if you can, don’t Google anything, don’t do a thing, just those two things. Call your attorney, call your insurance company. All those other things will get you into trouble because if you’ve done reassert they will ask about it and it will create all these lines of questions you don’t want to be answering. All of that can be prevented if you don’t do any of it. Now you can start to look stuff up once you have made that attorney relationship. Once that happens then you could always say you were doing research for your attorney and for your case and therefore it can’t be used against you. But if you that research before that then it will. It will make you look bad because it will be like “oh so the first thing you did was try to find out information about how to protect yourself”. It seems like they can’t find out but they can and they’ll laugh and now they can subpoena all kinds of electronic stuff so you just don’t know what they can get, what they cant. So those two things and only those two things.

Dave: In your book, you talk about some of these conflicts, these tension between the employer and the physician, usually the employee because more and more doctors they are in hospitals now and they’re not self-employed, so when malpractice insurance is purchased through the employer they’re dictating the terms right? How does that work? Tell us more about some of those conflicts.

Dr. Brenner: Well that happened to my friend, their first call was to their employer and even if you have the greatest relationship with your employer, the fact is is that in some ways they perform its going to be adversarial, even if it doesn’t feel adversarial you are on opposite sides or you’re at least codefendants and you’re both at risk and they are the bigger pocket and can seemingly have more power. So for instance emergency physicians they’re usually employed by contract groups, so your employers usually the other doctors in your group, it can obviously an HMO, it can be the hospital, it can be just partners in an OB-Gyne practice, I mean there’s many different ways that you can have this but I have had friends getting into trouble because their first call was to their employer, their employer found them an attorney that they like, who will represent their interest well but not necessarily your interest well and their employer run because it’s easier to let someone else take control. But the reality is that you should take control. I was told by my attorney because in my case the employer was sued as well as me, that won’t always happen but it can. And they said “you want your employer to get out of this case, you don’t want a big pocket in this case. You don’t want a corporation of faceless entity in this case, you want a person in this case. So it may seem like I’m favoring your employer by getting them out and keeping you in but the reality is you’re not going to leave, the best thing that you can do for your case is to get them out of the case right now”. So sometimes it seems like they’re favoring your employer when actually it’s good strategy for you. But if you let your employer run the show you won’t really know that, so you need to have your own attorney if possible. I have detailed all these ways in which you can separate yourself from your employer, but it doesn’t necessarily, you don’t have to be have a different attorney than your employer but you do have to think about it and consider separating and having your own attorney. If your employer is the hospital though then and your hospital is sued as well then you absolutely need your own attorney. If your employer is more of a contract group, the person who employs you and they just got pulled into it, it’s not so clear you probably can leave them into the case but you are the most protected when you have your own person representing you that is separate from all the other codefendants. That is the best scenario, it can always happen or it can’t happen easily because the insurance company wants to save money, they don’t want to spend money on three different attorneys with three different people with the same insurance company. So ideally they don’t want to do it but again I have all these stuffs where if you really feel there’s a conflict of interest, if you really feel there’s a problem then you can raise that. but with a hospital being your employer then there is a clearer conflict of interest and it happens so frequently, I mean I can’t even tell you the number of stories my father have told me about cases where everything was going swimmingly until this one moment when the hospital panicked and they said something on the stand that they weren’t supposed to say to protect them that screwed the doctor and the only reason his client was saved was because he was separate from the hospital and was able to defend himself. If they have the same attorney, if that attorney told that witness to say that then that attorney is not really supporting you. So it’s complicated but as I said the best scenario is you have your own attorney, if it’s all possible to make that happen that’s the best scenario.

Dave: So let’s say you’re in this process on trying to choose your own attorney to follow this advice, well how do you do that? What should you be asking potential attorneys that you choose?

Dr. Brenner: Well again and it’s a long process and it’s not very clear and it’s not very easy but the person you should be asking once you are trying to get an attorney of any kind is you want them to be very experienced in medical malpractice. So you want a partner in the law firm, you don’t want a junior associate who’s trying their first case, you want someone very experienced. And even that’s not always easy, I mean a friend of mine had that situation and was given a junior attorney and didn’t really like how it was going and was asking for someone else and they kept saying “why? We don’t feel the need, we don’t think this case is worthy of it” and you have to really push it and usually insurance companies want to make you happy and will go along with it. Mt dad gets all kinds of cases because the doctor chooses him and says “I like that attorney, I want that attorney” and they’ll say “okay fine, if you like that person we’ll let you have that person”. If you don’t know anyone it makes it harder. So if you have friends who have been sued, if you have colleagues, if you know somebody it is much easier to just get a recommendation and try that. But if aren’t doing that and you’ve been given an attorney that’s really the first place to start and then you want an attorney who’s experienced trial work, you don’t want someone whose goal is to settle the case and make it go away as soon as people. Because again from a doctor’s perspective settling is losing. Unless this is exposure for more than the limits of your policy, if this is a brain damage baby case, ten million dollar sort of thing, unless this is something that can ruin your entire life and can go over the limits of your malpractice policy then you don’t want to settle. If this is a nothing little case, attorneys don’t want to deal with it and they will say “oh this is nothing, this shouldn’t go to trial, we should just settle”. Well just because it’s nothing for them but for you it’s everything. So those are I think are the two things that I should focus on but again there’s a lot of things to ask and a lot of things to go through that I really can’t say in this really short period of time. But you want an experienced trial attorney who is going to take it trial. And so you can ask for percentages of settled cases, there’s all sorts of ways to ask if you want somebody who isn’t going to just make it go away. Because for them it goes away, for you it’s in your record forever because you get it into your databank if you settle. Even if you settle for one dollar and that includes arbitration, if you do arbitration because you work for Kaiser or HMO type place and they say “oh we’re going to arbitrate and so instead of this costing a million dollars it’s only going to cost ten thousand dollars”. Well that’s great for Kaiser but you just entered the databank. So anytime, even one dollar is spent on that case by a settlement of any kind you’re in the databank. If you win your case and they spent fifty thousand dollars to win it then you’re fine but if you settle for even a tiny little amount then that’s the problem.

Dave: What did that mean? What does that mean being in the databank?

Dr. Brenner: There’s a National Practitioner Databank and it records every single person who just had a settlement or a judgment against them. And what it means is every time you apply for hospital privileges they will ask you and you have to explain it and if you have a bunch and your malpractice company may jack up your rates because you’ve had something against you because you’re in that databank, if you have more than one of these then they can really increase your rates or they can drop you or say “you can’t do surgery”. You’re an orthopedist who do surgery, nothing to be able to earn much of a living. And I’ve heard of people who’ve had that happen to them because they settled a few cases that were nothing cases and then they have a big case and that case they lost and that’s it, now they can’t do surgery. So I heard of a group in my area who back in the day before malpractice was quite as scary settled a lot of easy cases just to get rid of them because they were nothing cases and then we had a crisis in our state and their rates got went up so much that they can’t barely afford to stay in business. So you can’t take it lightly, you really should only settle those cases that will put you in major peril. You have to save it for that horrible one. Don’t just do it because this was a fifty thousand dollar case that really shouldn’t be sued in the first place, that you want it to go away quickly, that you don’t want to think about anymore. It’s tempting, it’s easy but it has the potential to hurt you in the future because that never goes away, it’s not like points in your license where after five years they go away, they’re gone, they’re not expanse, it will be there for the rest of your career.

Dave: I’d like to bring it full circle and talk again about the book. Many docs are burned out quite a bit. I had a podcast a couple months ago about that subject. They don’t think they can make it anymore doing what they are doing. Many may even be looking for the second career- as a matter of fact one of the best tax deductions that I talk about in my book is being a business owner. I think it’s really cool that you are doing that by being an author and you also have your own blog and you had a radio show. Here you are with this other potential income stream. You are doing it! Do you imagine yourself writing another book at some point?

Dr. Brenner: Well again I kind of got into this in a different way, I was someone who’s been writing for years and just hadn’t got into the point where I was ready to publish. I write fiction, I write non-fiction and I didn’t know how to go out for publication and so I went and did a course writing for positions, part of the SEK series and what I realized, when i went there was I was the youngest person there, everyone was what you were talking about “I’m burn out and I want to switch careers and I think I can write and how do I do that?”. As far as this being income stream I mean it might pay for one vacation a year as far as net profits, you have to really be doing this for a while. When it comes to having this supplementary career I would say do it because you like to write, do it because you want to help people. Do it because you’re helping yourself and if it generates money, great that’s the bonus. But I wouldn’t look at it as “okay I’m burnt out and I want to be a writer and change my jobs” because the reality is if that’s what you want to do and you’re thirty, you better start now because maybe it will help you in your mid-forties to fifties.

Dave: And it takes tie, it takes commitment but it can be fulfilling too and it can be fun along the way and all those kind of things. But this is just a commitment.

Dr. Brenner: I’ve met a lot of people along the way, I’ve done lectures, I mean I do have a platform and sure being able to take an extra vacation every year and have it paid by the book, that’s nice but it certainly not getting me wealthy and it was never supposed to be. It’s really just something I’ve always needed to create an outlet out of me. Even in medical school I was writing, I just didn’t write as much but I was so it’s just one of those things that I’ve been doing and if I get paid for, great and if I don’t, fine. You know I have a job, so my advice would be if you’re looking to give up your day job to start writing and have that as a career I would say don’t give up your day job. But if you like to write, take it. I don’t even know if they still have that SEK course but if they do, take it. It’s a great course, you’ll learn a lot about writing and what you need to do to write and it will make you better at it if you do something like that if this is truly what you’re interested in. But very few people actually can supplement their career completely. But again there’s so many platforms now and if you have ideas about blogs and then yes, start a blog and then if it catches on, sure it can be converted into an income stream and the best way to get out of medicine really is to create your platform and then find people who want to hear you and go in the lecture circuit. That’s where the money is, being a consultant. That’s really the best way. So what you’re doing, what I’m doing, what could investors be doing, I mean all those things can theoretically leads to consulting and that’s really how you could supplement your career because that’s really is the big money.

Dave: The books, the blog are just the entree to get those other opportunities.

Dr. Brenner: Exactly and it’s accidental. People email, like you did, you emailed me out of the blue. People email me all of the time “hey I’d like to do this, I’d like to do that” Sure, some of them are worthwhile and some of them aren’t and I get contacted all the time about stuff. I’ve flown to San Francisco to do a lecture because I’ve met someone on Twitter who wanted to hear me lecture about medical malpractice to their residents. I mean that kind of stuff happens and it’s a cool experience. Did I get rich over it? No, I probably sold a few books and I got paid a little to pay for my airfare but it was a cool experience, something i would not have had if I had just been going to my day job every day.

Dave: Thanks so much for being with us! If people have more questions, how can they get in contact with you? Where can they find your book and your blog?

Dr. Brenner: Well my book is on Amazon, although I understand at the moment it’s sold out but my publisher insists that it is print on demand and you’ll be able to get it. Also I do have a few copies, you can buy it directly from me if you want it autographed. All of those ran out if I keep getting offers like I have been of late. That website is doctorbrenner.blogspot.com and you can contact me there or I’m on Twitter and you can contact me @IRB123 is my twitter handle. I am more than happy to answer questions and I’ve even done phone consults for some doctors who just want phone advice, paid me by the hour, whatever to help lead them in the right direction because they wanted more than what my book could give. So whichever but I’m happy to answer questions and I have definitely emailed with people to give them a few answers to questions or clarifications from the book and that sort of thing. So I’m happy to help if you want to reach out to me.

Dave: Great! Thanks again for joining us Dr. Brenner! I’ll look forward to reading your next post.

If you are a physician wanting to tell your story, grapple with these tough issues, and get on the soapbox for a few minutes, I’d love to share it too in the next Freedom Formula for Physicians Podcast. Make sure to contact me at dave@daviddenniston.com or on my website daviddenniston.com/physicians.

For the Freedom Formula for Physicians podcast, this is Dave Denniston. Thanks so much for joining us and make sure to subscribe and check in again soon! Have a good one.