The "Invisible Hand" Series - The Impact of Medical Malpractice with Dr. Gita Pensa | Part 2

I'm Lee Sharma, and this is part 2 of my conversation with Dr. Geeta Pensa about medical malpractice and what I've been calling the invisible hand, the forces that quietly shape how we practice medicine, often without us even realizing they're there. If you haven't listened to part 1, I'd encourage you to go back and start there. Otherwise, Let's get right back to my conversation with Dr. Geeta Pensa. I think so much of wrenching this invisible hand of medical malpractice and the effect that it has on us personally and as a profession is really what you're showing us. And you're showing it not only by the work that you're doing, but by the way you're living your life. You're showing us that this is unfortunately a part of practicing medicine, but accepting that means that we can equip ourselves and we can equip ourselves in a very practical way, looking at our limits, looking at our malpractice. I actually had an OB-GYN faculty in residency, and I think he was definitely ahead of his time. He used to talk to me about the fact that I shouldn't own anything on paper. I should let my spouse own everything on paper because he said, in the event that I am sued, I have nothing.

And what you don't want to get is divorced in that case. But yes, I mean, having someone sort of like advise you on these things is very important.

Yeah. But that was the first time I think I'd ever thought about that. And then I think the other part of this that you speak to so beautifully is the idea that when we rip the shame off of this, when we accept that we can be great doctors and we can be here to serve our patients and still go through this, and it's not a reflection on who we are. It's not a reflection on our calling. It's not a reflection on the quality of medicine we practice. It is a thing. It is a thing that happens. And that knowing that, can we learn to equip ourselves? And if that training starts in internship, medical school, residency, that's a good thing. That, that's a good thing to introduce. That's not gonna scare people away from practicing medicine. My goodness, they've already taken the MCAT. How much more scared can they be? Right. Let's go ahead and let them get into it.

That's right. We have to start acknowledging now that like this, what is happening right now with litigation is actually a threat to care. It's a threat to our patients. This is a threat to our patients, right? Litigation reform, litigation preparedness, all of these things are actually in support of patient care because the plaintiff's attorneys are selling everybody a lie, which is that these multimillion-dollar verdicts are the way to make care safer. It does not. We have data. There are researchers out there that look at this. It has nothing to do with the quality of care. All it does is bankrupt a system and have less money available to pay its people, right? It's, I mean, staffing goes down, like it's a huge drain. On the healthcare system. And then when we leave because of this predatory climate, things get worse for everybody. And so I think that some of the distaste in the past has been this feeling that like, we don't wanna come across like we're not pro-patient safety. It seems wrong to come across like we should defend ourselves. And I really believe that good care deserves defending. And the House of Medicine right now is literally under siege from all sides, right? We are beset on all sides, and we need doctors to actually talk out loud, to raise their voice, to get involved, to advocate, right? Instead of just avoiding this because it feels uncomfortable, because we've abdicated our responsibilities in this way. Like that, yes, like. Tort system has taken over, like medical grievances, right? I was talking to a client today. Those cases, like a nothing burger. Like there's like no damage. She did the right thing for this person and they were unhappy about it. And so they sued and they found somebody who would take this case under some informed consent craziness, right? It's baloney. And she is absolutely letting this derail her, right? And it doesn't deserve that, right? This is something that needs to be defended against. Right? And we need to give people the tools to do it because right now the plaintiff's attorneys, like this is generational wealth they're trying to create mostly for themselves, right? This is not the patients who are driving this, right? This is plaintiff's attorneys who are, I gotta say it, extraordinarily greedy. And the tactics that they're employing right now, the psychological warfare that they are exerting. So let's look at New Mexico.

Right.

In New Mexico, they finally had to pass legislation recently, which was very hard to do because so many legislators are actually practicing plaintiff's attorneys, right? Yeah. There is a pipeline from plaintiff's attorney to state legislator in most states. Okay. You, if you look up how many trial attorneys are in the legislature, I mean, there's sort of a natural affinity for them and the law, right? But a lot of them, they will be practicing plaintiff's attorneys and will they support legislation and legislation to support tort reform or litigation reform, they will not, right? That's just not going to happen. But we need to get, be aware of these things. And so in New Mexico, where the psychological warfare was the point, right? They created a system by which nearly 90% of all lawsuits that were brought forth had punitive damages attached, like early in the case, right before, so punitive damages are meant to punish the doctor.

Right.

And they are not covered by insurance, right? And so they're asking for millions of dollars out of the physician's assets from the get-go in 90% of all cases, right? So what do you think happens in New Mexico? You cannot get a doctor in New Mexico except for certain places where, you know, if they're really insured by the hospital system and they feel some protection through the hospital system. But like private practice in so many parts of New Mexico, like I've had Defense attorneys say outright to groups of people, do not practice in New Mexico. If you practice there, you are outta your minds. So now, like, they are trying to back up and sort of bring in some new legislation to make it less onerous, but they drove so many doctors away and it's hard to get a doctor to move. Like when you think about everything that goes into building a practice and your privileges and like, it's hard to pick up and move.

Yeah.

But they moved. And so we really have to start thinking about how do we allow this to go on? It is insane. And so, you know, another relationship that they have is with press outlets. So you will notice the hype in certain cases. A lot of times this is driven by, hold on to your hats, this is driven by third-party investors. So third-party investors, both domestic and international, there are like investors from China who are like betting against your lawsuit, right? They come in and they pay for expenses in either one or a pool of cases, right? Hoping that one of them brings in these $50, $100 million verdicts because that'll repay their investment. The plaintiff, by the way, will only get after the lawyer takes probably half. It's usually 40% plus expenses, plus then whatever the investors put into it. The plaintiff is going to get some small percentage of this if it ever winds up in their hands anyway, because of course that's going to get appealed and it's going to held up, get held up for all sorts of reasons, but. The investors will come in and they will fund media projects, right? Or the plaintiff's attorneys advertise heavily in most media outlets, and most media outlets are more than happy to hear about their story from the plaintiff's point of view. Defense is usually not. This is where we need to step up our game too. Like usually it's either a no comment or they could not be reached, right? And then they get this very one-sided account that makes everybody in that. area feel unsafe, right? And that's your jury pool. Where's your jury coming from, right? That's your jury pool. And will they say, I don't know about this particular case and jury selection, but yeah, you know what, it taints the water. So everybody feels like, oh, these hospitals are bad, these doctors are unsafe. And so that's the natural bias. And the plaintiff's attorney sweeps in and says, the way for you to remedy this is to give us $75 million because you got to send them a message, right? So no longer is this about the care about one person.

So.

Why am I telling you all this? Not to scare the pants out of everybody, but to say we gotta start advocating, right? Like medicine deserves defending. You should feel good about defending good care. Like, don't hide. You are good at this. Sometimes adverse events happen and they cannot be predicted or prevented. That is an absolute fact, right? You did not create This shoulder dystocia. You did not create the placental abruption. You did not create these situations, but they act as though you did and that your failure to both predict and prevent means that you will pay in perpetuity for your sins.

Yeah.

And this is absurd. It is absolutely absurd. And so we have to start pointing out the absurdity of it and the fact that this is why you can't get into your doctor for 6 months. We got to start having these conversations. We can't be afraid like this.

Yes, 100%. And this is the reason I'm so glad you're here, because I did not know that. I did not know about the third-party investors, but it makes so much sense. And my daughter lives in Clovis, New Mexico, but guess what? She has to drive an hour and a half to go see an OB-GYN because the one OB-GYN that was in Clovis, New Mexico closed up their shop and left.

There you go.

I do have a Really good friend who's a pediatrician in New Mexico. Her name is Dr. Nancy Wright, and she did run for the legislature this past time and she lost the primary, but we were so proud of her for making the effort because this, again, how do we change? How do we advocate? How do we actually take the situation and don't just say we're victims of it, but actually say we believe that we can actually change, rip this invisible hand away from the house of medicine. How do we do it? With what you're doing, tell these stories, get these stories out there because I hope that people who listen to this episode of the podcast will tell 12 people what you just said because that's illuminating. I mean, that's that's huge, and especially if you tell those stories to non-medical people, then you really start to change minds because it's not me saying oh I believe this doctor did the right thing. It's saying you know somebody in another country just paid $25 million for you to see this story on the news, and that way anybody who. watches this thinks that my whole hospital system is corrupt and we're all out here just for the buck and we're not here trying to serve our patient population.

No, it's incredible. It's really incredible. I mean, film projects, podcasts, you would not believe where the funding comes from. It doesn't have to be disclosed. And whenever you see a news story or hear some kind of account of like a medical whatever, you always have to think like, what is the other perspective? We've sort of lost all that and you would be shocked. At how a story on its, honestly, on its face sounds so terrible. And even I reading this news story would be like, geez, how did that happen? Right? Like, that sounds pretty bad. And then you actually hear the facts of the case and you're like, wait, no, no, no, no, no. This is like being completely misrepresented. And like, actually what happened was totally understandable. But we just get so primed by the media. And so now honestly, what's happened is this whole cultural shift in A lot of people not trusting doctors, right? And so sure, that has implications for who your jury pool is, but it also has implications for all of us. Like it was always a tough battle, but now it's made exponentially worse by people who believe that, that best we're incompetent and worst we're like out to get them. And that's not true. It's not true. And so I really want people to defend their good care and to defend medicine and just get out there and use your voice. Like we're not victims, we're doctors.

Right.

Are actually really good at what we do and we care a lot about our patients and nobody else in this whole system has made the oath that we have. And every single doctor I know would go to the mat for any one of their patients on any given day. And it would be a lot easier to do that if there weren't these crazy forces, these invisible hands, as you say, like completely keeping you from doing that.

Love it. No, no, no, no. We need this. And this is the thing, and this is the reason I'm so glad you're here. We need this. We need this call to action. We need the energy that you are putting out there for us to all do something. It may not necessarily be going out and sharing your knowledge and being a consultant on a huge TV show that's gonna reach millions of viewers. That may not be how you express that call to action. But even if it's sharing with one patient, even if it's sharing with one colleague, even if it's actually saying, I had this happen to me and I wanna talk about it and I wanna make it okay for you to talk about it too.

Yeah.

Then this is the call to action that we need.

That's right. Just today, a physician wrote on KevinMD about how litigation drove him outta medicine, right? Like he retired. He just couldn't, he wound up even getting dismissed from the case, but he wrote a great piece about that. Write, use your voice, call your legislator, tell 'em why it matters, right? There is so much that like one person can't do all of it, but everybody could do something. And even if it is just telling that friend. That, you know, it's okay to talk about it and it doesn't change a thing about what I think about you because I understand that this is just unfortunately part of being a doctor in America, right? Yeah. Whether or not you wanna move to New Zealand, cuz a lot of people are doing that, like maybe that'll happen, but right, this is the system that we've got otherwise and we deserve a voice and we should use it.

We do. And it's funny that you mentioned New Zealand because actually my kids and I had climbed Mount Kilimanjaro in 2021 and our guide was moving from Seattle to New Zealand. And his wife is a PA. And so apparently, I guess if you're a health professional, it's very easy to move to New Zealand because they really want people in their healthcare system. So he was telling me, it's like, you know, you could move to New Zealand tomorrow. You really could. And my husband's pulmonary critical care. So when we got back after the trip, I said that to him and he's like, we could live in New Zealand. Really? We could move to New Zealand.

There was an article about it in the Wall Street Journal recently about like the flight of doctors to New Zealand, but they have a really— But yeah, they wanna go and they have a much more sane litigation system over there. And again, the point is not that like, I mean, patients do get harmed, not at the rate that people say they do. This whole medical error is the third leading cause of death baloney is like, that is not true when they say that. That has been debunked. That study was ridiculous. You may as well say that vaccines cause autism. This is not real.

Right.

And so no, but yes. Bad things do happen sometimes and we do make mistakes, right? And there should be a system of recourse for that and it should be reasonable. What's happening right now is completely unreasonable. This is not okay.

No.

Not okay.

And I told my husband, the reason why I would never leave is because I believe in this healthcare system and I would rather stay here and fight for it. I get it would be easier. I understand that, but I would rather stay here and fight for this one because I believe in this one. I will be right here with you because I'm not moving.

Me neither.

Before we go, I wanna do one thing. I wanna share one thing because this was on LinkedIn today under the Doctors in Litigation page.

Okay.

And the reason why I wanna talk about it is because I think it would be beautiful. Do you know what I'm about to talk about?

Oh, they put the ballroom dancing picture up, I think, right? They did.

They put the ballroom dancing picture. So they posted this and you are gorgeous, by the way. Oh my gosh.

So how many years ago? 8 years ago now, right? Oh my God. So yeah, so a lot can change in 8 years.

But if any of you follow Doctors in Litigation on their LinkedIn page, there is a beautiful picture of Dita in a ballroom dancing competition. But what I want to talk about, the reason I want to close with this is because the message of the picture was, I guess that picture was taken, did they say like a few weeks before?

It was a week before trial started.

Yeah.

I will say I'm not a ballroom dancer. Like I'm not, this is a charity thing that was like modeled after Dancing with the Doctors. And I signed up for it in anticipation of the trial to keep me in like a sort of a good space to remind me that like there is life beyond this and it can be kind of fun.

Yeah.

And so I leaned into it heavy, but anyway, go ahead.

But what I loved about it is that I feel like sometimes as clinicians and people who work very hard and we're very goal-directed individuals, That when we have these kinds of things happen and we have challenging things happening to us, that sometimes there's this lie that starts to permeate that I can't enjoy my life until all of these things are taken care of.

Yeah.

That I can't enjoy my family, that I don't deserve to sit and have a nice glass of wine at the end of the day because I have this bad thing happening to me. And I loved that picture because it was basically such a beautiful act of agency, rebellion, truth, however you want to phrase it. But you basically said, yes, I have this thing happening to me and it's terrifying, but I'm going to live my life and I'm going to enjoy it. And I'm going to immerse myself in something that really is joyous. And I wanted to thank you for sharing that and posting that because it meant a lot to me to see that. And I think it's an important, vital message for all of us to understand that just because we're going through something terrible like litigation, Does not mean we have to stop living our lives and enjoying the people around us and enjoying who we are.

Yeah. I mean, there's definitely the messaging that like life stops once this happens and it should not. It doesn't deserve that, especially the way it is in its current form. Like it does not deserve that at all. This is something that happens to you in the course of practice. And I think we tell ourselves stories about what we deserve and what we don't deserve. And when something bad happens at work, that it means that you need to suffer for the rest of your life. And I'm not sure I buy that.

Amen. Geeta, thank you so much for being here. This has been amazing.

I'm so happy that you asked. Thank you.

For those of anybody who wants to find you, if they want to follow Doctors Litigation, we'll put the link for the podcast on the show notes, but if they want to reach out to you directly or if they are looking for support going through this process, how would they best find you?

Website's good. It's DoctorsAndLitigation, all one word together, and you spell out the A-N-D. So DoctorsAndLitigation.com. Awesome.

Thank you so much.

My pleasure.

For all of our peaceful warriors who have joined us today, if this podcast resonated with you, please share it with a colleague or a friend. Please reach out to somebody and exercise transparency, and let's take the shame out of this whole process. But thank you for joining us today on Scalpel and Sword, and until next time, be at peace.