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Empathy in medicine: Insight from malpractice cases rejected by attorneys

MDlinx Dec 07, 2023

No physician wants to think about the prospect of being sued, but litigation can be a stressful process for both doctors and patients. Athough many medical malpractice cases never go to trial, even the cases that are dismissed or finalized through out-of-court settlements can teach physicians important lessons about improving patient care and safety, the doctor-patient relationship, and staying on top of documentation.

Zurad EG. Don't be a target for a malpractice suit. Fam Pract Manag. 2006;13(6):57–64.



The significant patient impact


Jeanine Thomas of Hinsdale, IL, never imagined that routine ankle surgery would lead to a cascade of health problems. 

In November 2000, after slipping on ice and breaking her ankle, Thomas tells MDLinx she underwent surgery to have orthopedic hardware implanted. While the operation was successful, Thomas soon became critically ill with antibiotic-resistant, Methicillin-resistant Staphylococcus aureus (MRSA) that led to a life-threatening case of septic shock and organ failure.


After seven additional surgeries to save her leg, Thomas attempted to file a malpractice lawsuit, but her case was declined by several attorneys who told her she would need to prove negligence on the part of the hospital. 

Patients like Thomas typically file medical malpractice claims because of errors relating to diagnosis, prescriptions, surgery, childbirth, and anesthesia. However, as she learned, many malpractice cases never see the light of day because patients are unable to find attorneys willing to take their case. 

When I went in for surgery, my skin wasn’t broken, so an infection could have only happened during surgery.

“I had two doctors who aren’t affiliated with the hospital tell me that since the infection went into my bone marrow, it was most likely caused by contaminated surgical instruments,” Thomas says.


Thomas is one of many patients who have had their malpractice cases declined. One report, published in the Vanderbilt Law Review, found that 75% of attorneys surveyed said they reject more than 90% of the cases they screen.

Shepherd J. Uncovering the silent victims of the American medical liability system. Vanderbilt Law Review. 2014;67(1):151.



It’s not uncommon for attorneys to decline malpractice cases when costs exceed the damages, or if proving liability is difficult.

3 Reasons your medical malpractice case was rejected. Legal Services Link. May 22, 2023.



Why patients file malpractice lawsuits


For most patients who attempt to sue for malpractice, litigation goes far beyond receiving compensation. It also means holding medical professionals accountable and ensuring new procedures are implemented to keep patients safe.


Such was the case with Thomas, who launched The MRSA Survivors Network in 2003. Her nonprofit advocates for an aggressive and comprehensive approach to eradicating MRSA that includes screening all high-risk patients, isolation, strict hand hygiene, use of gloves and gowns, and decontaminating the environment. Thomas also recommends patients get screened for MRSA prior to surgery and wash themselves with chlorhexidine at home before entering the hospital.

Kimberly Turbin of Reseda, CA, also attempted to pursue litigation after a traumatic birthing experience, which she shared with the nonprofit, Patients for Fairness.

Kimberly Turbin. Patients for Fairness: A project of Consumer Watchdog Campaign.

Her case was turned down by 80 attorneys. A rape survivor, Turbin carefully explained the trauma she had experienced from being sexually assaulted and asked the medical staff if they could provide safety and transparency during her birthing process.



However, two pushes into delivering her son, Turbin’s doctor told her he wanted to do an episiotomy. When Turbin calmly declined, noting that her delivery was progressing normally, her doctor became hostile and defensive. Although Turbin wanted to give birth naturally, her doctor proceeded to make 12 incisions, leaving her emotionally and physically traumatized. 

After being turned down by malpractice attorneys, Turbin met with a women's advocacy group and successfully filed a battery and assault case against her doctor. Her case was strengthened by video evidence provided by her mother, who had recorded the birth. 


Patients are seeking accountability and answers


When a patient files a malpractice suit, their motives typically extend far beyond receiving a financial settlement. One study identified four predominant reasons that prompt patients to file a malpractice suit.

Huntington B, Kuhn N. Communication gaffes: a root cause of malpractice claims. Proc (Bayl Univ Med Cent). 2003;16(2):157–161.

They are as follows:


  1. The desire to prevent a similar bad incident from happening again

  2. A need for an explanation as to why the incident happened

  3. A desire for financial compensation to make up for actual losses, for pain or suffering, or for the cost of providing future care for the injured patient

  4. A desire to hold doctors accountable for their actions


Carla Keirns, MD, PhD, MSc, FACP, an associate professor of palliative medicine at the University of Kansas Medical Center, tells MDLinx that when an adverse medical event occurs, it's important for patients to feel as though they’re being heard and understood. 

“Patients want to know what caused their adverse event and to receive reassurance it won’t happen again to other patients,” Dr. Keirns tells MDLinx. “Their decision to take legal action is often driven by how they were treated by physicians and hospital staff."

Every patient who files a malpractice suit can tell you the moment they felt unheard or dehumanized.

Studies reinforce the importance of empathy, showing that doctors who demonstrate empathy have lower malpractice rates and better patient satisfaction and compliance.

Decety J, Fotopoulou A. Why empathy has a beneficial impact on others in medicine: unifying theories. Front Behav Neurosci. 2015;8:457.



Dr. Keirns notes that “empathy goes in both directions” and studies have shown it’s important for physicians to learn and practice self-forgiveness to allow for recovery from the trauma of medical errors.

Ross NE, Newman WJ. The Role of Apology Laws in Medical Malpractice. J. Am. Acad. Psychiatry Law. May 2021, JAAPL.200107-20.


Many experts recommend a four-step approach to self-forgiveness that involves responsibility, remorse, restoration, and renewal.

Norman K. Overcoming the Trauma of Making a Medical Error: Self-Forgiveness is an Important Skill for Recovery. J Emerg Med. November 30, 2020.



In recent years, many hospitals have adopted a proactive and transparent approach to addressing medical errors and other adverse events. The Agency for Healthcare Research and Quality developed a free online Communication and Optimal Resolution (CANDOR) toolkit in 2016, which illustrates how to engage patients and families in disclosure communication following adverse events, while also supporting and caring for doctors and other staff involved.

Communication and Optimal Resolution (CANDOR) Toolkit. Agency for Healthcare Research and Quality, Rockville, MD. Content last reviewed August 2022.


There’s evidence these communication and resolution programs work. One study looked at a CARe (Communication, Apology, and Resolution) initiative introduced in six Massachusetts hospitals.

Mello MM, Kachalia A, Rocheet S, et al. Outcomes in two Massachusetts hospitals give reason for optimism about communication and resolution programs. Health Affairs. 2017;36(10).

The study found the CARe program was successful and didn’t bring forth a barrage of new lawsuits. CARe also provided “care for the caregivers” after adverse events—signaling that the hospital’s caring relationship with the patient continues after an injury occurs, while reassuring clinicians that unfair blame is not being placed. 


What this means for you

Examining medical malpractice cases, including those declined by attorneys, offers physicians important lessons on improving patient care, safety, documentation, and avoiding litigation. Having a program in place at your hospital or medical practice that addresses how discussion and disclosure of adverse events is handled with patients and families, and how both patients and medical staff will be supported in the aftermath, has proven beneficial.




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