Dr. Jeff Segal: When a doctor is finally served with a summons saying, “We’re suing you,” it rarely comes out of the blue. There’s usually a collection of steps in the lifecycle of a lawsuit.
Speaker 2: Welcome to the Growing a Successful Orthopedic Practice Podcast. Join us every episode to hear from fellow medical practice administrators, staff, and physicians as we break down current issues, affecting the industry and share real stories from guests on their way to growing a successful orthopedic practice. Let’s get started.
Keith Landry: Welcome to the Growing a Successful Orthopedic Practice Podcast. I’m Keith Landry. Thanks for joining us for this latest episode. And if you work with an orthopedic practice, either as a doctor or a practice manager, and you’re not a lawyer, and you’re not an expert about some of the liabilities you face in our ever-changing world, then you better sit down and listen to this episode because I’ve got the guy who’s got you covered, Dr. Jeff Segal, CEO of Medical Justice Services, and they specialize in medical legal issues and making sure that doctors aren’t sued or helping them respond to frivolous lawsuits. Thanks for being here today. This is a fascinating topic of proactive steps to defend yourself in the legal system. Thanks for being here.
Dr. Jeff Segal: Hey, great to be here. Thank you.
Keith Landry: You bet. I just want to give folks a little bit about your background because it’s super impressive. When people joke, “It’s not brain surgery,” you just sort of roll your eyes because Dr. Jeff Segal is a neurosurgeon. He was a practicing brain surgeon for a decade, so he understands all of those jokes. And he’s also a lawyer. So talk about credentials. Gee, I think I’ll be a neurosurgeon. No, wait. I think after accomplishing more than 97% of the people on the planet, I’ll become a lawyer and an entrepreneur.
So it’s great to have you here today. You’re a board-certified neurosurgeon trained at Baylor College of Medicine, and you graduated from Concord Law School with the highest honors and your partner at the ByrdAdatto Law Firm, and you launched Medical Justice back in 2002. And I know this is really your passion and your mission in life. Medical Justice is a physician-based organization, focused on keeping doctors from being sued for frivolous reasons. And Dr. Segal also founded eMerit to help doctors protect and preserve their reputations online. So as I said, at the very beginning, Dr. Segal, if I’m a practice manager or an orthopedic surgeon, and I’m not an expert on protecting myself in the legal system, I’m subscribing.
Dr. Jeff Segal: Jump right in. So let me use that as a springboard. When you are in your training doing your residency or fellowship, that is a full-time job. You’re learning how to diagnose. You’re learning the techniques. You’re learning how to take care of patients. That in and of itself is not one job, it’s two jobs. It’s overwhelming. What don’t we learn in our training? We don’t learn anything about the medical legal world. We don’t learn about business. We don’t learn about marketing. We don’t learn about running a business, and all of those things are important because once you get out, you’ll eventually learn this, but you would prefer to have some background training and experience in advance before the proverbial crap hits the storm.
So my personal experience. I was out in the real world, perfectly delighted, had a booming clinical practice. In fact, I was practicing in Indiana state that had implemented Substantive Tort Reform in the 1970s. So we were beneficiaries of a very pleasant climate. The likelihood of being sued was quite low. Why? The then governor was a former doctor and in the seventies, a lot of people were migrating out of the Rust Belt to other locations. He said, “This must change.” So they fixed the law, multiple laws, and made it much more inviting for doctors to practice. Yet, and here’s the big yet, I was still sued for what I perceived to be a frivolous reason.
What happened? The single expert who testified against me had actually been expelled from our professional society for delivering frivolous testimony. Yet, he was there with an opinion, and his opinion was that I had violated the standard of care. Now, mind you, he had never seen or done the procedure at hand. He was what we call a hired gun. There were probably less pleasant ways to describe such an individual. I’m assuming this is a family show for the moment. But he was talented at being able to communicate with the jury. And that’s why he was hired.
This case, I can’t remember if I mentioned, he had been expelled from our professional society for delivering frivolous testimony. So he’s a repeat offender. This case was dismissed about two weeks before trial. I never felt as if I had prevailed. I just felt as if I lost less. I assumed there had to be a better way to do this because I was practicing in a state with a wonderful and favorable medical legal climate, yet I had to spend two years defending a case that never should have been filed in the first place.
So we formed an organization called Medical Justice, focused on keeping doctors from being sued for frivolous reasons. We pay the bills to file counterclaims and counter suits against proponents of frivolous lawsuits. Your professional liability carrier plays defense. They hire an attorney for you if and when you’re sued and they will pay a settlement and judgment, if it’s appropriate. Otherwise, they’ll defend you to the bitter end. We get involved before a case gets started and after a case is over to hold proponents of these suits accountable. But in our better world, we can hopefully keep a case from getting started in the first place. I mean, why do cases get started? They get started because people are angry at each other. So if we can deescalate conflict on the front end, wonderful. I was going to say, that’s the long and the short, but that probably is the long and the long of it.
Keith Landry: And that’s okay. And I just want to dive right in, because I think the key theme, what we’re getting at today, is proactive steps to defend yourself in the legal system. How proactive can a practice be in the landscape that continues to change?
Dr. Jeff Segal: Very proactive. How? So when a doctor is finally served with a summons saying, “We’re suing you,” it rarely comes out of the blue. There’s usually a collection of steps in the lifecycle of a lawsuit. And what are they? Well, it may be… Well, certainly first it’s the patient’s perception that something did not go right. It doesn’t mean that they’re right, but it’s their perception. And they make that perception known frequently. How do they do that? They yell and they scream. That may be one way to do it. They may send a nasty email. They may write a nasty note online or a rotten review. Moving on could be a request for some money back, or they got a bill from you, meaning that you collected $25,000 and you sent them to collections for $28. Tell you not to do that. Bad idea. Particularly if the patient didn’t have a great outcome. People do it. Don’t know why you do it, but it’s definitely not worth the 28 bucks, I can assure you. And most people who’ve gone through this process will agree with me on that.
Keith Landry: That’s funny-
Dr. Jeff Segal: Or there’s a request for records, a demand letter from an attorney and then the salmon. So there are multiple interactions typically where the patient isn’t getting their answers or conflict isn’t being relieved. And I can tell you what the benefit of having worked on thousands of these cases, there are multiple opportunities to diffuse or deescalate conflict upfront. Once a patient has lawyered up, you’ve moved from a conflict of two people to four people. So four people need to be satisfied at that point. Then if you are a student of human behavior, you’ll easily conclude that solving a problem with two people is generally easier than solving a problem with four people.
Keith Landry: And by the time they lawyer up, it’s an, “I’m going to get you,” thing now.
Dr. Jeff Segal: Yes. So interestingly enough, if you talk to plaintiff attorneys, and I speak with them frequently, what is it that fuels the patient? What is the anxiety that causes them to go through a process where they have to prove the case? It’s not you have to prove. It’s the burden of proof is on the patient to demonstrate that indeed, A, they were a patient, B, that you, the doctor, violated a standard of care, and C, that that caused their damages. It’s a pretty tall order. And the attorney’s got to spend a lot of money on this, but frequently they feel as if they haven’t been heard, that the doctor ignored them, dismissed them, and that is hiding something that when they seek answers by not being responsive, they come to the conclusion, right or wrong, that there’s a reason you’re hiding something. You must have done something wrong and your feet need to be held to the fire.
So the first order of business is communicate, communicate, and over-communicate. The more transparent you are, particularly when the patient’s expectations aren’t managed, and we’ll talk about that in just a minute, managing expectations, but if they’ve not been managed, you’ve got to communicate because if you do not and you dismiss them, they will fill in the blank with the worst possible scenarios. Nature abhors a vacuum, and they will fill it in with, “You’re the bad guy.”
Keith Landry: Arrogant, aloof, sneaky, uncaring, devious.
Dr. Jeff Segal: Yes. And it doesn’t have to be that way. Even for doctors who don’t want to spend… And look, not every doctor wants to spend a lot of time talking to the patient. I had one mentor who was absolutely a spectacular technician. He took the toughest cases. He was a doctor’s doctor and had tremendously good results. But he didn’t really like chatting with most patients unless you are particularly interesting. If you were fascinating, he’d probably spend an hour with you. But if you were not, he really just wanted to get into the OR. And his comment to me was, “Look, if you’ll want a friend, get a dog, I’m not here to be your friend.” But patients don’t take to that kindly.
So what happened? He ended up getting a PA. I thought this was brilliant. His PA was the face and the voice to the practice, the public. So when the patient needed, wanted information, the PA over-communicated. The doctor didn’t have to do that. So you don’t have to change your personality. You just need to figure out how to change your workflow so that questions are answered and things are not left unsaid.
Keith Landry: Good deal. I’d like to grab a couple of scenarios here. I want to get some real nice specific nuggets for our listeners, because I think there’s so much we could talk about here. So I’d like to just give a scenario. I’m a practice manager or the orthopedic physician. I just received notice of a patient’s intent to sue me or my practice. What are the first three things I should do? And maybe the number one thing I should definitely not do.
Dr. Jeff Segal: Okay. So there’s so much to unpack in that. Normally, if you’ve received an intent to sue, hopefully this didn’t come as a surprise. Hopefully you already are aware of this particular case. And I would argue that hopefully you did what you could to avoid even getting to this place, because it’s not inevitable that a patient says they’re going to sue you. There are so many places to resolve conflict. Sometimes it’s as simple as picking up the phone and speaking to the patient, finding out what makes them unhappy.
What are the things that fuel anxiety with a patient? It’s mismanaged expectations regarding the process, like the, “When can I go back to work?” example. So if they expect they’re going to go back in one week and take some six weeks, they’re going to assume something happened. Number two would be mismanaged expectations related to an outcome. If you don’t bring up the risk of the procedure and the patient loses an arm, for example, that’s a mismanaged outcome. Now, you can be realistic and say, “The risk of you losing your arm is one in a thousand. It hasn’t happened in my practice, but I can’t say it will never happen,” that’s okay. But you don’t want to freak patients out. Everybody’s used to some risk. We all fly. We all drive. So it’s important to temper expectations. A non-discussion of risk is not the same as low risk.
And the final thing is a mismanaged expectation regarding money. So if a patient is expecting minimal bill, and all of a sudden they’re getting inundated with all these extra bills, and they had a bad outcome, getting back to the story I started earlier, if you send them to collections for 28 bucks, you can expect they’re going to be pissed off.
In fact, we had this couple of days ago. A plastic surgeon did a procedure on a patient. It was an insurance procedure for reconstruction, post-mastectomy. And doctor accepted insurance, didn’t charge the patient any money after that. But somehow the hospital kept billing the patient and the patient kept getting hit with a surprise. And so, finally, this doctor hasn’t been sued and she really hasn’t done anything wrong, but the patient’s angry and she’s misdirecting her anger to the surgeon who did everything right. My point is we live in an ecosystem and if a patient is not expecting a large bill and they get a big bill and they’re struggling anyway, don’t be shocked if they jumped to an attorney to help them pay their bills.
So getting back to the question, what do you do once you get this love letter from an attorney? You notify your carrier. You send it to him because you do want to give them notice. Interestingly enough, most doctors have what is called a claims made insurance policy. What does that mean? It means that you need to maintain coverage from the date of the medical event, to the date you get notification that there’s a potential legal event. And depending upon the statute of limitations in your state, it could be as short as one year, it could be as long as three to five years. Every state is different.
But these policies require that you report this case, any legal claim, within the anniversary of that policy. So if you, for example, have a policy that goes from January 1st to December 31st, and then renews on January 1st, yes, you do need to continue making your premium payments. But if you get hit with your notice of intent on December 29, I would not wait until the new year to report. Why? Some carriers are sticklers for this little rule buried deep in their policy, which says you need to report in the same period for this policy.
Now, it seems disingenuous to me, only because if you continue to be making premium payments, how does that change anything? And in fact, in some states like California, they basically say the insurance carrier has to demonstrate to deny claim, that somehow you screwed up the case for them, that they could have delivered a better outcome or saved money if you had timely notified. My point is, it’s a technicality. Most of the good carriers won’t bring it up. But to your question, what should you be doing? You should notify your carrier.
Number two, I’d look at the record, see what happened. You may need to dust the cobwebs off of the record to figure out what happened because if the lawyer is assigned to this case, you’re going to need to educate the lawyer as to the medical nuances. There aren’t many MD, JDs in the country, about 500 to a thousand of us. I’m one of them, so I can talk shop with a doctor about-
Keith Landry: Absolutely.
Dr. Jeff Segal: -about the various nuances. But by and large, and most defense attorneys for professional liability, are pretty smart. They’ll pick up on the topics, but you’re going to have to educate them as to what happened in this case. And more broadly, what is this type of case? What does it mean when we’re talking about prophylaxis for deep venous thrombosis? What are you trying to prevent? How do you do it? What’s the standard of care? Et cetera, et cetera. So you’re going to need to educate-
Keith Landry: Let’s talk-
Dr. Jeff Segal: Yeah, you’re going to need to… Go ahead. Yeah, I’m sorry about that.
Keith Landry: I apologize. Let’s talk a little bit more about you get the notice of the patient’s intent to sue. What should your practice manager be doing to preserve records, prepare records, make sure they’re not doing something? Obviously they should not shred stuff, but what should they do from a legal perspective to sort of get ready to defend?
Dr. Jeff Segal: Don’t beef up the record. The record is the record. If you address something upfront, it’s an explanation. If you do something after the fact, it’s an excuse. And you don’t want to take a great case and have it turn into what’s called spoliation. Spoliation is a name when you spoil the record. And even though you want the record to be pristine, who doesn’t? Everybody wants the record to be pristine, particularly if your recollection of the case is different than what may be in the record. If indeed you feel the burning need to update the record, it needs to be done in such a way that it’s done contemporaneously, meaning that you get served on January 1st and you realize, “Oh my God, I left out this paragraph about what really happened. Why? Because I was taking care of the patient. I can’t do CPR and document at the same time. I haven’t mastered that skill yet. But I do want to write what happened,” then just say, “This is January 5th after I received this and this is my best recollection of what happened.”
I would still have that conversation with your attorney. Before you touch the record. Don’t update the record. You can take a very defendable case and turn it into a hard to defend case because your credibility is on the line. Why? People shouldn’t update the record after the fact. You don’t do it to a financial records. If you’re a banker, you don’t do that. It’s got to be done very transparently so everybody can see in sunlight precisely what you’re doing.
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Keith Landry: That is fantastic insight there. Let’s talk a little bit about worst case scenario. You lose the suit and it’s for a large judgment, or you lose a couple of suits, how much is your medical license in jeopardy? At what point does your medical license really become in jeopardy?
Dr. Jeff Segal: Look, let’s talk a little bit before about getting to that point because I’m all into risk mitigation.
Keith Landry: Sure, sure.
Dr. Jeff Segal: Now, there’s always a built intention between wanting to get your day in court, particularly if you feel like you’re right, but you don’t want to roll the dice and lose everything. You know that your professional liability policy will typically cover you up to a set amount. Let’s say it’s a million dollars in this particular case. But let’s say the patient is a quadriplegic and there’s a life care plan, I could easily top $10 million. Let’s make it even more challenging. It’s a professional football player who was bringing in 10 million bucks a year for the next 10 years. You’re talking about, nobody has that kind of professional liability policy, but you don’t feel like it’s right for you to roll over and pay the million dollars. How do you deal with this?
Well, there are various strategies that can be used. One is called the high-low agreement, the high-low agreement. What is that? So the traditional status quo risk with a malpractice case is that if you decide to go to court, there’s a winner and a loser. And you could win big, you can lose big or something in between. So in the case I just referenced, if you win, great. You pay the other side nothing. You walk away. There’s no reporting to the DataBank. Wonderful. The alternate universe, the worst case scenario, is that you lose for a hundred million dollars. Your carrier has a million dollars, so you got to find 99 million. You will not find that. You may have to file for bankruptcy, or you can appeal it, et cetera, et cetera, but that’s a horrible day for you. You’ll probably go, “God, I wish I had just rolled over and given them policy limits.”
Keith Landry: Or I’d say, “I wish I had just gone to work for Publix.”
Dr. Jeff Segal: Exactly. But now you will be able to work for Publix. So there is a middle ground approach. It’s called the high-low agreement. It’s based on the idea that each side has a risk. There’s no reason this would be going to trial unless the other side had risk and you had risk. We’re trying to find a way to thread that needle. How do we move forward? We basically say, we’re going to have a side agreement. The jury is still going to hear the case, the jury is still going to determine whether there was liability or not, but that’s where the jury’s role will end. It doesn’t matter what they say. They may come back and say 1 million. They may come back and say 100 million. It won’t matter because the two attorneys have come up with a side agreement. They’re basically saying each side can get something out of this.
So instead of the being zero to a hundred million, for example, as these bookends, in this case, it may be a hundred thousand and a million dollars policy limits. So if the jury comes back and says, “You win, doctor. You’re a winner here.” Your carrier will still need to write a check for $100,000, because that is the low end of the high-low agreement. So they’re going to walk away with something, recoup their expenses. They don’t necessarily take a complete and total bath on this, but they don’t walk away with a lot of money.
Keith Landry: Is that how it usually plays out with that agreement?
Dr. Jeff Segal: It can. You have to establish that agreement upfront. It’s a side deal, if you will, and it has to be thought of upfront. A lot of times people aren’t thinking about it. This is always after the fact they learn about it later. “Oh my God, I had no idea I could do this type of thing.” It’s like, “Yeah. I guess I’ll know next time.”
Keith Landry: Shoulda, coulda, woulda.
Dr. Jeff Segal: The other side is, well, what if the jury comes back and says, “Doctor’s liable for $100 million.” And then you go, “That’s horrible. It makes for a rotten headline, but I’m not going to go bankrupt.” I was able to roll the dice. I tender policy limits, I keep my house and I live to fight another day. So that’s a way where it’s the win-win or each side loses less philosophy. And that’s a way to potentially mitigate the risks going forward.
Keith Landry: Let’s talk about a different sort of, still in the same general sphere, but a little different tack. I just got a request for medical records from an attorney. What should I make sure I do ?
Dr. Jeff Segal: When a lawyer request records, the first thing to do is to make sure it’s an authorized request. Some attorneys that know this type of field that are good will send the HIPAA release and understand what they’re looking for. But if you don’t have a HIPAA release, you honestly can’t either confirm or deny that a particular individual was your patient. So hold their feet to the fire and just say, “Not trying to be difficult here, but before I take any action, I need a formal HIPAA release signed by your client.” And I would start with that because you don’t want to send a record with protected health information to a third party. I’ve seen this before, where a patient will see an attorney and get cold feet or move on, or they hire another attorney. And all of a sudden you’ve sent records to someone who is not representing the patient. You’ve turned a non-problem into a problem. So the first thing to do is to confirm that you have the proper authorization.
Number two is you have to pay attention to the timeline. If someone requests records, you need to send those records to them within 30 days. Some states you can only have 15 days to send it to them. And you need to it to them in the way it was requested. This is by HIPAA, HIPPA and the HITECH law. If they want it on a DVD, you got to stick it on a DVD, and there are limitations on how much you can charge for all this stuff. So every state treats us a little bit differently, but you want to make sure you timely send out the records. And again, I would notify your carrier just to let him know, got a little concerned about this particular case. Particularly if the patient didn’t have a great outcome, you should just be aware of those three things up front.
Keith Landry: Does the physician have any legal rights to not send the medical records to the attorney?
Dr. Jeff Segal: If the patient has authorized that records be sent to the attorney, the only way you cannot send it to him, or should not, is if there’s a statutory exception in HIPAA, and there definitely are situations. So it may very well be that they have a signed release, but that there’s something confusing about who the patient is. So let me give an example of this. We had a client the other day who operated on a patient collectively and the patient passed away. And the family, there are three of them, said, “We’d like the records.” Well, I can’t remember if they have an attorney or not. Let’s assume they do not have an attorney for the moment. But the question is, who can get the records? Well, the patient would otherwise be able to get their own records, but the patient is dead and HIPAA applies to a dead patient the way it applies to a patient who is alive.
That said, the executor or the administrator of the estate stands in the shoes of the patient, in this case, because the patient is deceased. But we don’t know as of today who the executor of the estate is. And you don’t want to send the records to one of the three children, unless until who the actual executor is because they may be squabbling, there may be money involved, you don’t know.
So in this particular case, the way we threaded the needle was to get all of those three siblings to sign a document saying they want the records and that they’re all in line potentially by probate to be the executor. This is one of these thorny situations, and I’d like to say it’s the exception to the rule. It’s not. Every so often you’re dealing with divorced couples. You’re dealing with people who may not be competent. You may be dealing with people that have either dementia or… The list goes on and on.
Keith Landry: Wow.
Dr. Jeff Segal: So yes, there are situations where you want to just pause, take a deep breath and ask the right people, A, do I need to send the records? And then B, what’s the proper way at the send it and to who?
Keith Landry: These are all great insights. I wonder, sort of come back to the initial theme for a moment, and what I’ve told our listeners we’d get them is proactive steps to defend yourself and the legal system. I want you to give us some advice about not being naive and not burying your head in the sand and hope when this just won’t happen to you. Maybe you’ve only been practicing a few years, nothing’s happened to you. You’ve heard some stories, but you’re like, “I take good notes and I love my patients. I care about them, so I don’t want to think about this.”
Dr. Jeff Segal: If you believe somehow that you are Superman and you’ll go your entire career without ever having any medical, legal interaction, man, I wish I had your optimism. Most doctors do think that way early on. Most doctors believe they’re above average in terms of skillset, like on Lake Wobegon. But the numbers don’t lie. If you see one to 3000 patients a year, you’ve got an extremely busy practice, and you practice to age 65, or even 60, there was an article in the New England Journal of Medicine stating that you will be sued at least one time in your career with a 99% frequency. Meaning, put a different way, if you’re a surgeon and it was across all state in the country, 99% of surgeons will be sued at least once before the age of 68, some more than others. In fact, in my specialty, neurosurgery, the average surgeon is sued once every five years, so it’s 20% frequency. Orthopedic surgery, it’s up there too. It’s not quite 20%, but the odds are not in your favor that you will go an entire career without being sued.
Now, the good news is that most of the time when you are sued, the jury will see it your way or the case will be dismissed. So it’ll have a positive outcome, but not before you get to experience a great deal of stress and sphincter tightening over time, thinking that this is going to be a challenge. So I think you should think about it. Don’t hide from this. There are 1000 steps along the way that you can make this better. One example would be if you were deposed during a case, how do you do a great deposition. When you’re being deposed, you’re auditioning for the role of defendant and your goal is you don’t want that part. You’d like them to see you as a kind, decent, diplomatic, calm, cool, and collected individual. And if you do that, and it’s an iffy case, they may basically walk away or tell their clients saying, “I’m not sure we’re going to prevail.” But if they see you can be easily rattled, our defensive and are a jerk, they’re likely to continue to keep going.
We do have several documents called Avoiding Deposition Traps and How to do a Great Deposition. All doctors should read this before there’s a problem. They should internalize it, memorize it, sleep, eat, breathe it. And if and when you get that love letter from an attorney, you’ll be prepared.
Keith Landry: Absolutely brilliant insights from a brain surgeon, if I was going to sum it up in a simple phrase. I enjoyed this podcast so more that I think I’m going to do a couple more with you.
Dr. Jeff Segal: Let’s do it. We should do it.
Keith Landry: Okay.
Dr. Jeff Segal: We can speak all day on these topics.
Keith Landry: So wrapping up this episode, how can folks get ahold of you?
Dr. Jeff Segal: Easy. Go to our website medicaljustice.com. That’s one word, medicaljustice.com. You can email us at email@example.com or you can call us 877 MED JUST. M-E-D J-U-S-T J U S T. 877 MED JUST.
Keith Landry: Awesome. Doctor Jeff Segal, the CEO of medical justice services and expert as an attorney and a brain surgeon. How about some IQ factor going on there. Thanks so much for being with us. We like take a moment and thank all of our listeners for tuning into the Growing a Successful Orthopedic Practice Podcast. More episodes just around the corner. Thanks for being here.
Dr. Jeff Segal: Thank you.
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