Tell-tale signs your patient may be more likely to sue for malpractice

By Kristen Fuller, MD
Published January 19, 2024

Key Takeaways

I once cared for a patient who I would later find out had filed multiple lawsuits against multiple physicians. During our appointment, she told me she was concerned she had multiple, undiagnosed chronic disorders, and that she had been to other doctors but was ultimately unsatisfied with their care. (Some of the doctors she mentioned were former colleagues of mine that I knew to be outstanding physicians.)

"She asked many questions about my training and my career so far—it almost felt like I was at a job interview."

Kristen Fuller, MD

I knew something was "off," and I made sure I was exceedingly thorough, I answered all her questions, and I extensively documented my exam and lack of physical findings. I didn't want to give her any reason to pursue a malpractice case against me, and, ultimately she didn't.

A heads up for a potential lawsuit

While I can't be sure that my actions effectively warded off a malpractice suit from this patient, she demonstrated some tell-tale signs of someone who might be potentially litigious—something that remained in the back of my mind throughout our appointment, for good reason.

According to 2023 research perspective from the AMA, approximately 31.2% of physicians have been sued for malpractice at some point in their career.[] Most malpractice lawsuits do not make it to court and are actually dropped, and the vast majority of the small number of claims that go to court are won by the physician. However, defense legal costs still impose an average of $30,000. 

These proceedings have a significant emotional and mental toll on the physician and their family. While these factors can be frightening, the AMA stresses that getting sued is not indicative of errors in medical practice.

"I was once named in a lawsuit because my name was in the chart. That particular patient ended up dropping the case, but it affected how I practiced medicine."

Kristen Fuller, MD

I have many colleagues who have been named in lawsuits and who have been expert witnesses in court and, as a result, practice “defensive medicine.” Even though most cases are dropped, being named in a lawsuit is draining and can really make you question why you pursued this career path in the first place. 

Although we don’t necessarily want to assign labels, it is essential to be aware of patients who are more likely to seek out lawsuits than others, in order to protect our reputation, our practice, and our emotional and mental health.

Here are some tell-tale signs of the potentially litigious patient.

They have a laundry list of medical conditions

Many patients, especially older patients in primary care offices, have a few chronic medical conditions; however, if they have multiple specialists involved, multiple family members at visits, and arrive with a huge folder of files and information pulled from the internet, they may be looking for someone to blame for their chronic health issues. 

These patients may take up a lot of our time with an exhausting list of questions. Still, it is essential to spend the extra minutes with them, answering their questions and addressing a couple of problems at each visit, while making sure to schedule follow-ups to address their additional concerns.

In a sense, you want to hand-hold a little while establishing firm boundaries—after all, this patient is just one of the many you may see that day, and it’s not fair to others when you are running behind. 

They don't want to listen

Patients who do not listen to you after multiple attempts at explanation, or those who just simply do not listen to reason, may be more likely to sue, especially when it comes time for procedures and consent forms. Instead of talking “at” these patients, it is vital to work with them and ensure they can comprehend what is happening. 

You can tell whether your patient understands by saying, “Would you tell me that you understood what I am suggesting for you by repeating what I just said?” Enlisting help from the patient’s family member, or from one of your colleagues, can help with any misunderstanding. 

They talk poorly about other physicians

This is a big red flag, but you should treat this patient like any other patient. Do not write anything in the chart about their previous physician, and do not engage with the patient in criticizing the other physician. Instead, you can say, “I am sorry you feel that way, and I hope we can devise an agreeable plan.” 

They are constantly dissatisfied

Whether they are mad at the parking fee at your office, the wait times, the front desk staff, or your standard of care, these patients often find something to be angry about. Try not to apologize or feed into this behavior.

Instead, you can say, “I’m sorry you feel that way; I hope we can continue to work together agreeably and respectfully.” 

They have a history of 'doctor shopping'

You may notice a new patient listing off different doctors within your specialty, and this should be a red flag. Maybe they are looking for a specific prescription or diagnosis to file a worker’s compensation case, or perhaps they are looking for litigation. 

They've been 'fired' by other physicians

Patients can be fired for many reasons, and it's not always their fault. But if you are seeing a patient whom another physician has fired, try to obtain their past medical records and contact the previous physician to get the whole story. Try to avoid bringing up the details with the patients, and instead say something like, “I would like to come up with an agreeable plan with you if that’s OK.” 

They've sued before

Whether personal, insurance, worker's compensation, or malpractice lawsuits, it’s a red flag if a patient mentions they have been previously involved in litigation.

They challenge your expertise 

These patients may come in with a stack of papers from random websites and spend ample time telling you what they read online. Instead of getting defensive and correcting them, provide them with a list of reputable sources.

You can say, “I am glad you are trying to learn more about your diagnosis, but I suggest you spend time reading these sites and journals." Next, explain in a friendly manner how and why you came up with your findings and diagnosis for their treatment plan.

Noticing these signs in your patients can make our blood boil, but this is the reality of working with the general public. Instead of being dismissive and defensive, we must exercise caution, patience, and compassion while remaining hyper-aware of the importance of proper documentation. 

Each week in our "Real Talk" series, mental health advocate Kristen Fuller, MD, shares straight talk about situations that affect the mental and emotional health of today's healthcare providers. Each column offers key insights to help you navigate these challenging experiences. We invite you to submit a topic you'd like to see covered.

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