Doctors and Litigation: The L Word

In this episode (the last of Season Two), Dr. Pensa  sits down to speak with a plaintiff's attorney. However, her guest, Chad Englehardt, is not your average plaintiff's attorney. Chad is a highly lauded attorney, law professor, and advocate of Rick Boothman's Michigan Model (for more on that, listen to Episode 13 of Season Two.)  We talk extensively about CRP (Communication - Resolution) programs, patient safety, and the dysfunction of our current legal system, which re-traumatizes patients and clinicians alike. If the first rule of medicine is 'First, do no harm,' then he feels the second rule in medicine, and the first in law, should be: "Do no further harm." We also talk a bit about third party investors and litigation funding (which we have not yet covered in the podcast, but is of great importance...we'll revisit it!) During the course of our conversation, Mr. Englehardt mentions two books: "Win - Win" by Rebecca Sposita, Esq "Gain Without Pain" by Greg Hammer, MD You can reach Chad via email at chad@cmtjustice.com.  We'll be back in a few months with the start of Season Three!

Following up after episode 15, "What to Know When the Government Comes Knocking," Dr. Pensa interviews a physician who went up against the US Department of Justice -- and won. Dr. Muhamad Aly Rifai is a practicing psychiatrist, boarded in psychiatry and internal medicine, who was indicted on charges of healthcare fraud by the US government in 2022, following seven years of investigation. Dr. Rifai was confident he was innocent, and confident in his billing practices -- and despite intimidation by the government, threats of imprisonment for up to 40 years, and very long odds, he refused to plead guilty to a lesser charge or settle. He won against the US Government after a 6-day trial, and is here to share what he learned in his ordeal. This Department of Justice press release describes the accusations against Dr. Rifai. (I feel they should update the headline!) After demonstrating that the case was baseless and should never have been brought to trial in the first place, along with his resounding victory in court, Dr. Rifai filed a motion for sanctions and to recoup his substantial legal fees.  In the wake of that motion, one prosecuting attorney was fired, and two others have 'retired.' The motion, as of May 2025, is still in limbo. Dr. Rifai shares his story in an effort to educate all of us, and to empower physicians going through similar circumstances.   

The Department of Justice is waging a war on healthcare fraud, and sometimes even well-meaning doctors can get swept up in it. Today's interview with healthcare law attorney Anthony Box will shed some light on this high stakes topic.  Tony Box has extensive experience not only in defending doctors against government allegations -- but he also previously investigated and prosecuted these cases as a federal prosecutor and FBI agent. He knows both sides of this coin very well.  Host Dr. Gita Pensa and Attorney Box break down the basics of what every doctor needs to know about governmental investigations and litigation.   

Dale Swope, the managing partner at Swope, Rodante P.A., shares over 30 years of expertise in insurance bad faith lawsuits. He highlights the importance of understanding insurer reputations and obligations. With insightful real-world examples, he discusses the complexities of insurance claims, and the often-misunderstood metrics of bad faith. Swope also warns about the pitfalls of malpractice insurance and the significance of knowing who you truly work for in a corporate setting, making this a must-listen for medical professionals.

Richard Boothman, JD, is a trailblazer in patient safety and transparency, known for his pioneering work on the Michigan Model for addressing medical errors. In this engaging conversation, he reveals how the outdated 'deny and defend' approach fails everyone involved. Boothman discusses the necessity of Communication and Resolution Programs, advocating for a shift toward transparency and compassion in healthcare. He shares compelling stories that illustrate how embracing honesty can transform adverse events into opportunities for learning and improvement.

The first LEAP (Litigation Education and Performance) Course for Clinicians will run from March 17th through June 2nd, 2025. This is a hybrid online course, 1 h/week self paced videos and 6 live virtual review and Q&A sessions with Dr. Pensa, one of which will be an Ask-a-Lawyer segment with a seasoned defense attorney. These live sessions are spaced every other week, at varying times, and will be recorded if you can't make a session.  This is for anyone -- doctors, nurses, APPs, dentists -- any healthcare provider who wants to understand the litigation process, and how they can navigate it with skill and resilience.  We'll cover from getting named all the way to jury verdict, and all the possible stops in between -- along with many of the coaching techniques for performance Dr. Pensa uses with her 1:1 clients. *The course is eligible for CME and CNE credits, so use those professional funds for something really useful!* Check out the course here at https://www.doctorsandlitigation.com/LEAP/signup Please share with anyone you feel could benefit from learning about what we were never taught in training about medical litigation!

In this discussion, Dr. Stephen Cohen, a seasoned general and colorectal surgeon with decades of experience as an expert witness, shares eye-opening insights into common pitfalls faced by physician defendants. He highlights significant mistakes in legal cases and the often-overlooked disparity between jury verdicts and actual medical care standards. Listeners will discover the emotional strains of depositions and the challenges of conveying complex medical issues to juries, as well as real case outcomes that illustrate the intricacies of navigating medical malpractice litigation.

Dr. Pensa explains why attention to your thinking, even when you feel your mental health is "good", can lead to personal growth and a more satisfying life. We all know the markers of excellent physical health, but what are the components of excellent mental health? Is it simply being happy all the time? Is that even possible? (Spoiler: it's not.)  Using functional fitness for the body as an analogy, we look at the importance of not waiting until your health is poor before making efforts to improve or optimize. Strength, endurance, flexibility, agility, speed, and balance are facets of both functional physical health as well as your mental health and thought processes that can be developed and strengthened over time with intentional practice. A person adept in all of these spheres can become more adaptable to life's inevitable challenges, and just like in physical health, learning to lean into resistance and some discomfort in lower-stakes situations will increase your capacity over time. The concepts of thought work and emotional agility are introduced.  Mentioned resource: Susan David's Emotional Agility 

Many of us have no idea who our medical malpractice insurance carrier is, let alone the details in our policy.  But this ignorance can have huge consequences when it's time to face a claim, and it's better to go into that challenge with your eyes wide open.  On this podcast, Dr. Pensa speaks with John Shufeldt, MD, JD, MBA about things that every doctor or other patient-facing clinician should know about their insurance coverage, which can vary tremendously from policy to policy, and from insurance company to insurance company.  So before you take a new job, or before you face a claim: have a listen, and learn about the questions you've got to ask. 

Physicians and other clinician defendants whose cases go to trial (roughly 8-10% of malpractice cases) usually have little understanding of the legal events and strategies involved, which naturally amplifies their anxiety. Today on the podcast, we'll continue to address these knowledge deficits.  Decisions made about how cases proceed are usually made by considering how the 'optics' of a given case will look to a hypothetical jury -- but when trial begins, at jury selection and the voir dire, that once-hypothetical jury will be come real flesh and blood laypeople, who have their own ideas, perspectives, biases, likes and dislikes. And they will decide how this long legal saga ends and which side prevails (barring any appeals, which unfortunately Dr. Pensa is very familiar with.)  In this podcast, we talk to Shari Belitz, Esq., a trial and jury consultant, about the importance of jury selection and the strategies involved. Ms. Belitz is the CEO and Owner of Shari Belitz Communications. She is a seasoned attorney who then trained in forensic psychology before launching her career as a trial consultant and strategist.  We talk about why the jury is all-important in case outcomes, the strategies attorneys can deploy during the voir dire to try to select jurors who may be more inclined to side with their case, how attorneys can expose bias and strike jurors for cause, and the utility of mock juries and focus groups.  If you haven't listened to the Season One episode on Trial and Settlement, start there first.  You can learn more about host Dr. Pensa here.