Doctors and Litigation: The L Word

This month we take a high level view of the landscape of 'tort reform' in the US (and what does that even mean?) Physician-lawyer Dr. Shilpa Mathew, MD JD, walks us through some basics of tort law and advocacy efforts in the US, how you can get involved, and why it matters. (Note: Dr. Mathew's views expressed in this podcast are strictly her own, and not representative of her employer or ACOG.) Shilpa Mathew, MD, JD, is a Northern California physician double board-certified in Obstetrics & Gynecology and Lifestyle Medicine. She is a former practicing attorney who spent the latter half of her legal career focused on health insurance and regulatory compliance and brings a unique perspective to the intersection of law, medicine, and policy. She has long been active in health advocacy and policy efforts—ranging from things such as pro bono legal work to protect basic health rights of foreign detainees in US prisons to serving as a medical student delegate to the California and American Medical Associations. She has a particular passion for issues related to medical malpractice and focused her residency research project on malpractice knowledge, attitudes and perceptions of OB/GYN residents nationwide. Currently, she serves as the Co-Chair of the Legislative Committee for the American College of Obstetricians and Gynecologists in California, where together with a team, she helps shape policy to advance women’s health. BONUS: In the introduction, host Dr. Gita Pensa talks about her own litigation advocacy wish list - there are some 'standard' wishes on there, and some you may not have considered before. Here is Dr. Pensa's informal Holiday Wish List for malpractice litigation reform.  BIG picture, pipe dream stuff:  no-fault systems or state based compensation funds, healthcare specific courts, specialized judges...   Protection for doctors  Similar to Utah HB 503 legislation: if doctors carry adequate liability coverage, no going after their personal assets Or at least abolish post-judgment wage garnishment, or have limits on duration Very clear and consistent protections of retirement accounts and primary residence No punitive damages demands without case passing a strict standard/tribunal beforehand  Protection for mental health records and peer support/emotional support for health care workers  No data bank reporting in no-fault settlements Employed doctors can't be named as individuals (think about other corporate litigation -- Boeing, for example. Engineers aren't named individually) Employed physicians should get "litigation leave", time for litigation prep and trial, and no adverse consequences if productivity-based   Attorney reforms Caps on plaintiff's attorney contingency fees, and no double dipping for costs above that "Loser pays" ("English rule") for legal fees Attorney should face consequences for baseless punitive damages accusations Limits on venue shopping Limits on pre-trial or pre-resolution publicity Prohibition of attorney social media posting about active cases, especially disparagement of involved parties Sanctions for misleading press pre-trial press releases (which can cause reputational harm for doctors) Standards of professionalism for depositions and reasonable limits (6h) for duration (and consequences for not adhering to them) Early resolution programs Require Michigan Model-type early resolution attempts, and require the doctor and plaintiffs to be in the room together Early neutral evaluation (with currently practicing, same-specialty physician input), with ability for outright dismissal for reasonable care Time limits on expert retention -- no plaintiff's expert supporting the case a year after filing? No case. Expert Witness Reform No testifying if you are not currently actively practicing and in same specialty as defendant Medical board oversight of expert witnesses -- with the ability to censure Legal implications for outright false testimony  It's a wish list. But...the only way to move towards any of these steps is through involvement and advocacy.  Happy Holidays to all, and we'll see you in 2026.  

REMEMBER: Use code LEAP100 until December 1st, 2025, to get 100$ off of the LEAP for Clinicians course! Eligible for 16 Category 1 CME/CNE Credits. Learn the essential mindset and skillset you need as a clinician in litigation, all in one place.    This month: finger pointing among health care professionals after an adverse event, or during litigation. We've all seen it: the tertiary care center dumping on the community hospital in their notes. The specialist criticizes the primary care doctor or the ER's management. The doctor blames the nurse. The nurse charts defensively, ending with "MD Aware." The attending blames the resident. The resident blames the attending! All in a chart war, preserved for perpetuity.  Or even more sinister: a surgeon, after an adverse surgical event, tells the family the awful news -- and then tries to implicate someone else: the anesthesiologist, the CRNA, the radiologist who read the study... You know we could go on. We've all seen it.  And then, once litigation starts -- now we're co-defendants. How does this 'blame game' play for a jury?  Is the chart the place for these disagreements? (Spoiler alert: NO.) Can finger pointing in charting actually backfire and get you pulled INTO a case? (Spoiler alert: YES.) Our guest today is Heather Hansen, trial consultant and communications expert. For over 20 years, she defended providers and hospitals in medical malpractice cases. She created a curriculum for medical residents, teaching them communication and advocacy tools. She has helped leaders from Harvard Business School, Google, LinkedIn, LVMH, the American Medical Association, and Hospital Corporations of America advocate for change, resources, opportunities, and attention.  As a trial attorney, she taught thousands of witnesses how to be credible and charismatic in court. She combines her experience with her psychology degree, conflict-resolution training, and time as a TV anchor to develop her trademarked systems and help her clients achieve their goals.  Heather has been featured on The Today Show, Dr Oz, CNN, Fox News Channel, MSNBC, CBS, and Fox Business. She’s the best-selling author of The Elegant Warrior: How to Win Life’s Trials Without Losing Yourself. She’s the host of The Elegant Warrior podcast, which is consistently in the top 100 business podcasts on Apple.   Learn more about host Dr. Gita Pensa.    

Welcome to Season 3 of Doctors and Litigation: The L Word! We start off with an update on the LEAP Course (Litigation Education and Performance) -- sign up from now through December 1, 2025 with coupon code LEAP100 and get $100 off. Now with up to 16 hours of Category 1 AMA CME Credits! https://www.doctorsandlitigation.com/LEAP/signup Our first conversation in Season 3 is with Dr. Anthony Orsini of The Orsini Way. Communication with patients or families after unexpected medical events is crucial, but most of us have no formal training in how to do it well. Compassionate and skilled conversations can pave the way for understanding and closure for families. However, when handled poorly or defensively, these conversations can create resentment, distrust, and anger, which can also make litigation more likely.  What do patients and families want from us in these moments? What do we do with our body language? What happens if we cry? Can we show compassion by touch, on the hand or the shoulder? Why is this so difficult? Have we lost our humanity in the name of professionalism? Dr. Orsini has spent the last 25 years developing proven communication techniques that help doctors build rapport and quickly form trusting relationships with their patients. Come along as we discuss evidence based strategies to handling these conversations better.   

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.