Getting Sued is Not Fun!

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TL -

I appreciate the content discussed in this talk and can relate to the feelings expressed by Dr Swaminathan. While listening it occurred to me that I have never heard a discussion from the patient point of view as to what are some of the motivations for suing. There exists of course literature addressing what doctors may do to limit litigation, but I think it might be interesting to have a panel talk from a patient/plaintiff perspective.

Michael Frank, MD JD -

Anand says he didn't discuss details of his med mal suit with his wife because he was instructed not to discuss the case with anybody other than his defense lawyer. He and Mike talk about this as if it is a generally accepted restriction which EM:RAP listeners should observe if they get sued. Not true. The spousal communications privilege would prevent such discussions from disclosure, and in all the years I've been managing claims, I've never seen a plaintiff attorney dumb enough (and I've seen some dumb ones) to even ask about discussions between the defendant physician and spouse. There are other important exceptions as well, including clergy privilege, and of course the peer review privilege, which provide venues for safely discussing one's case.
A good defense attorney would never advise a client physician to refrain from discussing the case with the physician's spouse. The emotional state of the defendant physician has a great deal to do with the defensibility of a case, and the last thing a defense attorney would want is to contribute to the already great stress the physician is under by depriving the physician of the support of the spouse. Just as important, there is an unfortunate tendency of physicians being sued to isolate themselves from others, including their spouse, often spurred by feelings of guilt and shame, which are common in med mal suits. This isolation in turn creates additional stress on the marriage relationship for both the defendant physician, and the spouse who may be hurt and resentful at being cut off in this way. We actively encourage physicians to discuss their case with their spouse so as to limit the strain the lawsuit places on the marriage.
Perhaps you might include a correction in a future EM:RAP.

Joseph P. -

Any MD/DO/JD feel free to correct me, but last I checked discussions with your legally married spouse are protected/privileged. In other words, you should not face any issues discussing a case with your spouse.

Stephen G. -

I would like to offer a correction: EM physicians actually are able to talk to their spouse without fear of subpoena. Conversations with one's spouse are protected under "spousal privilege." Likewise, conversations with one's priest (if that's your thing), attorney-client privilege, and even doctor patient privilege are protected under common law. This can vary by state, but in most states, this is the case.

So do talk about cases with your spouse. There may be some nuance with some state laws, but in California and other states that rely on common law to dictate norms, spousal privilege is the rule. Your spouse cannot be subpoenaed.

Stephen G. -

Actually, spouses can be served a subpoena, but they can't be obliged to testify against their spouse. (But can reveal information if they choose)

tyler i. -

I would have to say this was not the most helpful discussion since the case involved was clearly not the the ER physician's fault. I'm glad you approached this topic, but it would be more helpful to discuss a case that someone felt badly about or felt that they really could have done something different.

Rolla B. C. -

hi mel, anand, mike
i think husband-wife conversations are protected by marital privilege. so, as long as your wife is your friend, she might be a good resource. thoughts?

Joshua S. -


I was disappointed with this discussion as it didn't involve all the aspects of a lawsuit. I believe a better discussion would have included a case, trial, and results. In fact a discussion about depositions would probably be even better. Unless you have ever been sued or deposed, you don't know what it is like to be accused of terrible things, even though all you did was save the patients life.

Tim S. -

Good discussion. I can relate to the different emotions expressed in this case. In the future, I think there is definitely more to talk about regarding the process.

Charles W. E., M.D. -

while not to downplay the stress Anand experienced it does not compare to going through the whole process to include trial. Having to sit through a 2-3 hour deposition and read/listen to "experts" testify against you is a whole different level of stress to experience.
Please do an segment with someone who has been-there-done that in the future.


1/7 of us are "served" papers every year, yet almost none of us will talk unless it is to tell others "I did everything right." Any physician who will share his/her experience with others is doing a service. I regret not talking about my experiences. Suits involve years of red tape and hundreds of documents. Take care of yourself and take care of your colleagues. Your are too valuable to become collateral damage after a case that goes poorly.

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