BLOGGING: All Doctors Please Beware!

Posted on April 5, 2025 by Dr. David Edward Marcinko MBA MEd CMP™

WARNING – WARNING

By Dr. DavidEdwardMarcinko; MBA MEd

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According to www.NPR.org, there are more than120,000 health care forums on the Internet with opinions ranging from pharmaceuticals, to sexual dysfunction, to acne. The same goes for commercial doctor blogs that promote lotions, balms and potions, diets and vitamins, minerals, herbs, drinks and elixirs, or various other ingest-ants, digest-ants or pharmaceuticals, etc.

And, to other doctors, the blogging craze is a new novelty where there are no rules, protocols, standards or precise figures on how many “medical-doctor” or related physician-blogs are “out there.” Unfortunately, too many recount gory ER scenes, or pictorially illustrate horrific medical conditions, or serious and traumatic injuries. Of course, others simply are medical practice websites, or those that entice patients into more lucrative plastic surgery or concierge medical practices. Some are from self-serving/credible plaintiff-seeking attorneys wishing to assist patients.

Not all physician blogs are geared toward practice information, marketing or medical sensationalism. In fact, just the opposite seems to be the case in extremely candid blogs, like “Ranting Docs”, “White Coat Rants,” “Grunt Docs”, “Cancer Doc,” “The Happy Hospitalist,” “Mom MD”, “Cross-Over Health”, “Angry Docs” and “M.D.O.D.,” which bills itself as “Random Thoughts from a Few Cantankerous American Physicians.”

According to some of these, they are more like personal journals, or public diaries, where doctors vent about reimbursement rates, difficult cases, medical mistakes, declining medical prestige and control, and/or what a “bummer” it is to have so many patients die; not pay, or who are indigent, noncompliant. We call these the “disgruntled doctor sites.” Some even talk about their own patients, coding issues, or various doctor-patient shenanigans.

But, according to psychiatrist and blogger Dr. Deborah Peel and others, the problem with blogging about patients is the danger that one will be able to identify themselves – the doctor – or that others who know them will be able to identify them.”  Her affiliation, Patient Privacy Rights, rightly worries that patients might track back to the individual, and adversely affect their employment, health insurance or other aspects of life.

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And, according to Dr. Jay S. Grife; MA Esq., it is certainly true that if a doctor violates a patient’s privacy there could be legal consequences. Under HIPAA, physicians could face fines or even jail time. In some states, patients can file a civil lawsuit if they believe a doctor has violated their privacy. Still, internet privacy issues are an evolving gray-area that if not wrong, may still be morally and ethically questionable [personal communication].

Our colleague Robert Wachter MD, author of the blog called “Wachter’s World,” says it’s important for doctors to be able to share cases, as long as they change the facts substantially. On the other hand, the author of “Wachter’s World” and a leading expert on patient safety alternately suggests “You might say we as doctors should never be talking about experiences with our patients online or in books or in articles.” But, he says that “patients shouldn’t take all the information on blogs at face value. Taken for what they are — unedited opinions, and in some cases entertainment — blogs can give readers some useful insight into the good, the bad and the ugly of the medical profession”. Link: http://www.the-hospitalist.org/blogs

Well, fair enough! But, doctors unhappy with their current medical career choice, or its modern evolution, should probably consider counseling or even career change guidance, re-education and re-engineering. It is very inappropriate to vent career frustrations in a public venue. It’s far better for the blog to be private and/or by invitation only; if at all [Personal communication].

We believe that a hybrid mash-up of both views can be wholly appropriate, or grossly inappropriate in some cases. Of course the devil is in the details; linguistics and semantics aside. Nevertheless; what is not addressed in electronic physician “mea-culpas” are the professional liability risks and concerns that are evolving in this quasi-professional, quasi-lay, communication forum.

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Example: We have seen medical mistakes, and liability admissions of all sorts, freely and glibly presented. In fact,

“Some physicians find that the act of liability blogging as a professional confession that is useful in moving past their malpractice mistakes. And, it is also a useful way to begin a commitment to a better professional life of caring in the future. It helps eliminate the toxic residue and angst of professional liability and guilt. Moreover, as they are unburdened of past acts of omission or commission, doctors should remember to also forgive those who have wronged them. This helps greatly with the process and brings additional peace.”

However, although some may say that this electronic confession is good for the soul, it may not be good for your professional liability carrier, or you, when plaintiff’s attorneys release a legion of IT focused interns, or automated bots, searching online for your self-admissions and scouring for your self-incriminations. Of course, a direct connection to a specific patient may still not be made and no HIPAA violation is involved. But, a vivid imagination is not need needed to envision this type of blind medical malpractice discovery deposition query even now.

QUESTION: “Doctor Smith, I noted all the medical errors admitted on your blog. What other mistakes did you make in the care and treatment of my client?”

And so, the question of plausible deniability, or culpability, is easily raised.  If you must journalize your thoughts for sanity or stress release; do it in print. And, don’t tell anyone about it so the diary won’t be subpoenaed. Then tear it up and throw it away. Remember, with risk management, “It is all about credibility.” Don’t trash yours! These thoughts may be especially important if you covet a medical career as a researcher, editor, educator, medical expert or something other than a working-class or employed physician.

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Medical Malpractice Trial Types

Posted on February 16, 2024 by Dr. David Edward Marcinko MBA MEd CMP™

Understanding the Litigation Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

There are two types of trials, trial by jury and trial by judge. It is the task of the judge to determine the law, while the jury determines the facts.  In a trial by judge—called a “bench” trial—the judge determines both the law and the facts.  The U.S. Constitution guarantees a trial by jury.  If a party does not request a jury trial, however, the right to a jury trial can be waived.

The Statistics

Most civil cases in the United States are tried by jury.  Of the 3 percent of all cases that go to trial, the Department of Justice reports about two-thirds are jury trials, and one-third are bench trials. Whether to try a case to the judge or to a jury is strictly a matter of choice by the litigants.  If either party timely requests a jury trial, however, the case must be tried to a jury.  Because of the constitutional implications, in most cases both parties must waive their right to a jury trial in order for the case to be tried to a judge.  In a few instances, such as trials for injunctions and family law matters, a jury trial is not an option and a judge must hear the case.  However, the majority of civil issues offer the litigants a choice between bench or jury trials.

Notions and Perceptions

So why would anyone choose to have a case heard by a judge as opposed to a jury, or vice versa?  The reasons are mainly based on preconceived notions about judge and juror biases.  Generally, most litigants favor a jury over a judge because the decision is put into the hands of many rather than in the hands of one.  Plaintiffs usually like juries because lay individuals are believed to be more sympathetic, and a plaintiff can appeal to the emotions of a jury.  Conversely, defendants usually prefer bench trials because a judge is thought to be more objective in deciding a case.  Requesting a bench trial can also result in a much quicker trial date.  Since court dockets in most large cities are becoming increasingly congested, the time difference between a jury trial date and a bench trial date can be literally years.

Assessment

None of the perceptions about the benefits of a jury trial or a bench trial apply to all situations—every case is different.  There is at least some empirical evidence that some of the commonly held conceptions about bench and jury trials are actually misconceptions.  For example, while it is almost universally believed that juries tend to favor plaintiffs and award much higher monetary amounts, a recent study by the Department of Justice suggests that judges favor plaintiffs and return higher verdicts.  Still, jury trials outnumber bench trials by about two to one [1].

Conclusion

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[1] See Civil Jury Cases and Verdicts in Large Counties, Civil Justice Survey of State Courts at: http://www.usdoj.gov/bjs/abstract/cjcavilc.htm.

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The Medical Expert [Trial Witness]

Posted on September 2, 2023 by Dr. David Edward Marcinko MBA MEd CMP™

An Important Determinant of Success or Failure

By Dr. Jay S. Grife; JD, MA 

In every civil medical malpractice trial, besides counsel for the respective parties, there is a Plaintiff (patient) and a Defendant (doctor).

In addition to the parties and their respective counsel, witnesses, both lay and expert, form the main body of testimony that will be elicited and heard by the Judge and jury.  

Overview of Witness Types 

Both lay and expert witnesses serve to tell the story of the parties to the court.  In a medical malpractice case, a lay witness generally explains the facts of specific events which they have witnessed, or more likely, how the Plaintiff has been affected by the alleged negligence. The parties may also call a special kind of witness, called a “medical expert”, to testify on their behalf.   

Definition of Medical Expert 

An expert witness is simply a witness with experience in a particular field, whose testimony will aide the lay jury in understanding the medical aspects of the case. In most medical malpractice cases, the Plaintiff must present expert testimony from a health care practitioner that the Defendant fell below the standard of care required and caused injury to the patient.  

These are the two essential prongs which when conjoined equate to negligence in legal terminology; (1) liability being a breach in the standard of care and (2) causation being that the negligence caused the Plaintiff damages. 

The “Two-Pronged” Test 

It is essential to understand that a Plaintiff cannot prevail in litigation if only one of these two prongs has been left unsatisfied.

For example, if a physician failed to diagnose cancer in a terminally ill patient, the fact that the diagnosis was not made can be deemed negligent, but the negligence in the failure to diagnose did not damage the patient, in that she was terminal when she initially presented. 

It is this two pronged test which delineates legal negligence from commonly expressed negligence or a bad result from the care and treatment provided.

Experts Not Always Required 

In rare instances, and in ever diminishing jurisdictions, expert testimony is not required in medical negligence matters.

In those instances, the legal doctrine of Res Ipsa Loquitur or “the thing speaks for itself” often will attach to obviate the expert’s place.

Normally, in a medical malpractice case, a Plaintiff is required to establish: (1) a breach in the standard of care or that an act or omission by the Defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant’s profession; and (2) causation or that such negligence or omission caused the plaintiff’s injury.

The Res Ipsa Loquitur Doctrine 

However, the doctrine of Res Ipsa Loquitur exists to preclude the need for direct proof of negligence through medical testimony, and allows cases submitted under the doctrine to proceed to the jury even in the absence of testimony as to negligence because a jury is permitted to draw an inference of negligence from the specific act itself.

The classic example of such an incident would be the leaving of a surgical instrument inside a patient’s body, or operating upon the wrong body part [“Never-Event”]. 

Never-Events: https://medicalexecutivepost.com/2007/12/20/new-never-events-policy/

Conclusion:

What has been your experience with medical expert witnesses – help or hindrance – hired gun or balanced interpreter?

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Medical Negligence and the “Burden of Proof”

Posted on June 18, 2009 by Dr. David Edward Marcinko MBA MEd CMP™

Understanding the Malpractice Trial Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

In all civil trials, the plaintiff, as the accuser, has the burden of proving his case.  Much like a criminal defendant, a civil defendant has no burden and is presumed “innocent” of any claim by the plaintiff.  As a result, if the plaintiff presents no evidence, or insufficient evidence to support his claim, the defendant wins without having to present his case.  The burden the plaintiff carries is that he must prove his case by what is called a preponderance of the evidence.  In other words, the plaintiff must prove it is more likely than not that he should win.  The best way to visualize this burden is to imagine a set of scales.  If the scales are even, or tipped in favor of the defendant, then the plaintiff has not carried his burden, and loses.  In order to prevail, the plaintiff must tip the scales in his favor.

Proving Medical Malpractice

To prove a case of medical malpractice, a plaintiff-patient must present evidence that the defendant-doctor was negligent, and the plaintiff does this by proving the treatment provided was below the applicable standard of care.  The “standard of care” is the care and skill that a reasonably prudent practitioner would provide in treating a patient.  It is established by the medical community at large, and is constantly evolving.  Care that violates the standard of care today may not necessarily violate the standard of care several years ago.  This distinction is an important one, since most cases take several years to get to trial.  The standard of care is never based on the outcome of the case; a bad result does not necessarily mean a violation of the standard of care.

The Medical Expert Witnesses

Expert medical testimony is required to establish a violation of the standard of care in virtually all medical malpractice cases.  A plaintiff who fails to present the required expert medical testimony in a medical malpractice case will lose.  The plaintiff must also produce expert medical testimony that the alleged negligence caused the injury.

For example, suppose that a patient’s widow brings a medical malpractice case against a surgeon who admitted the patient for removal of an AO plate embedded in bone.  The plaintiff-widow alleges that the surgeon should have done something to prevent a pulmonary embolism, which occurred three days after the patient was dismissed from the hospital, killing him.  The patient might have an expert who would testify that she would not have removed the AO plate, but left it in place.  Such testimony does not carry the burden of proving care below the standard required of the surgeon.  Indeed, in most cases, the standard of care allows a practitioner to choose from a variety of treatment options within an acceptable range.  Mere testimony by an expert witness that “I would have treated this patient differently” is insufficient to establish a breach of the standard of care.  The bad result also is not itself proof of any negligence.  Nor is there any evidence that the doctor caused the patient’s death (i.e., that the embolism would not have occurred without the alleged negligence of the surgeon). Therefore, doctor wins on all elements.

Assessment

Have you ever been involved in a medical malpractice trial; or other healthcare litigation process? The Medical Executive-Post readers are interested in hearing your story.

Conclusion

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“First Do No Harm” – A Medical Legal Imperative

Posted on January 30, 2008 by Dr. David Edward Marcinko MBA MEd CMP™

Primum Non Nocere

By Dr. Jay S. Grife; JD, MA

This Latin phrase is axiomatic in intent and is one of the earliest inoculations students of medicine receive.  It dovetails the Hippocratic Oath to provide both a moral and ethical foundation for physicians in furtherance of their mission to heal the sick. It asks little in objective terms but demands an immense measure of dedication and knowledge from those who practice their profession.  Yet, it is roughly estimated that one of every five practicing health care professionals will confront the enigmatic process of medical malpractice within a twelve-month span. Despite the fact that most health care practitioners will never see the inside of a courtroom, the sequelae of the event itself can scar the psyche forever after. And so, the quintessential risk-management question for all medical practitioners is: What can be done when the inevitable happens and what can you as a practicing doctor do to confront the process? 

-Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]

INTRODUCTION

“Even among the sciences, [and in the managed care era], medicine still occupies a special position. Its practitioners come into direct and intimate contact with people in their daily lives; they are present at the critical transitional moments of existence. 

For many people, they are the only contact with a world that otherwise stands at a forbidding distance.  Often in pain, fearful of death, the sick have a special thirst for reassurance and vulnerability to belief.” 

Socialization of Medicine and the Litigation Prescriptive “Spark”  

When this trust is violated, whether rooted in factual substance or merely a conclusion lacking in reality, American jurisprudence offers several remedies with the core being civil litigation.

For example, I have witnessed a vast spectrum of reasons that prompts a patient to seek the counsel of an attorney.

Whether it be an untoward result of treatment or surgery, an outstanding invoice being mailed to a less than happy patient who decides that the doctor’s treatment did not measure up to expectations, a physician’s wife, employed as the office manager, charging a patient eighty-five dollars to complete a medical leave authorization form, or simply a perceived lack of concern on the part of the doctor or his personnel, patients can be motivated to seek redress outside the realm of the doctor’s office. 

Compound any of the above scenarios with well-meaning friends and family, and the proverbial initiating “spark” has been lit; and the prescription for litigation has been written.

Bilateral Communication is a Preventative Key 

Woven throughout any discussion of the topic, should be suggestions that might obviate the foregoing.

While it is not a panacea, nor a cure-all for medical negligence cases, many believe it to be the most effective methodology for resolving those differences that see the growth of a medical malpractice lawsuit; honest and bilateral communications. 

Not Trial Bound by Destiny 

In the United States, a trial is thought to be the most common manner in which disputes are resolved. Contrary to what we see on television, very few cases actually make it to trial with most be either dismissed or resolved through mediation or arbitration.

In fact, a few years ago the U.S. Department of Justice recently reported that only about three percent of all civil cases are resolved by a trial. The vast majority of civil lawsuits, and in particular medical malpractice cases, are settled or dismissed before any of the litigants see a courtroom. 

MORE: http://shrutinshetty.com/2016/10/27/primum-non-nocere/

Conclusion:

What has been your experience on this often contentious topic – settle or litigate – please comment? 

Reference: [1] Paul Starr: The Social Transformation of American Medicine, Basic Books, 1982, pgs. 4-5.

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