EP 51: The Facts Didn’t Matter

The fear of being sued is something that many healthcare professionals have. According to the AMA, approximately 50% of physicians age 55 and older report having been sued at some point in their careers.* Episode 51 of the Hope4Med podcast features Dr. Mark Lopatin, a retired rheumatologist who is active in healthcare advocacy. Dr. Lopatin shares his experiences with lawsuits in his career and the lessons he learned from them. Despite doing the right thing, despite excellent charting, the facts didn’t matter. He further discusses how the events affected him emotionally and mentally, and how he was able to recover by seeking help and moving forward.

Check out Dr. Lopatin’s book, Rheum for Improvement: The Evolution of a Health-Care Advocate:

*Source: https://www.ama-assn.org/practice-management/sustainability/1-3-physicians-has-been-sued-age-55-1-2-hit-suit


[00:00:00] Dr. JB: Welcome to Hope4Med.

[00:00:05] Hi everyone. Welcome back to the Hope4Med podcast. I am your host, Dr. JB, and today’s guest is Dr. Mark Lopatin. He is a retired rheumatologist who has been very active in healthcare advocacy, both in organized medicine and in grassroots advocacy. Welcome to the show.

[00:00:24] Dr. Lopatin: Thank you for having me.

[00:00:25] Dr. JB: So Dr. Lopatin, please start from the beginning, share with my listener your origin story.

[00:00:33] Dr. Lopatin: Well, growing up, I knew I was going to be a doctor but I was extremely naive. I knew nothing about healthcare. I knew nothing about bureaucracy. I knew nothing about advocacy. Healthcare was all about helping patients. I didn’t know any of the other stuff that was involved in healthcare. I got an education when I got sued and that kind of got me started in the political realm, in terms of organized medicine and grassroots advocacy. I can share that experience with you, if you like.

[00:01:02] Dr. JB: Yeah. The fear of being sued is something that a lot of healthcare professionals have, so yeah, please share your story.

[00:01:09] Dr. Lopatin: It’s an appropriate fear and it’s one, I mean, most physicians are going to experience depending on which survey you look at anywhere from 50 to 70% of physicians will be suited at one point or another. But as for me I actually had two lawsuits going on at the same time. The first one was a woman who sued me for failure to diagnose her brain tumor. Now keep in mind, I’m a rheumatologist, I’m an arthritis doctor. I don’t treat brain tumors, nothing to do with them. She came to see me with widespread musculoskeletal aches and pains, which were fibromyalgia. At her new intake exam, I asked her about headaches, she said no headaches. I saw her three or four times, she did well. I didn’t need to do anything, her primary care doctor had started her on medication, I didn’t need to change anything, and basically I had no role in her care, she did well. A year and a half later, I got a knock on the door on a Sunday night naming me in a lawsuit, accusing me of reckless disregard and all kinds of horrible things. But basically that lawsuit was, I was sued for failure to diagnose something outside my specialty, in a patient who denied the cardinal symptom of that particular entity, even though I specifically asked her about that symptom.

[00:02:19] Dr. JB: Well, wait, so you’re a rheumatologists and you’re getting sued for failure to diagnose a brain tumor?

[00:02:28] Dr. Lopatin: Correct.

[00:02:28] Dr. JB: Did I hear that correctly?

[00:02:29] Dr. Lopatin: You heard that correctly.

[00:02:30] Dr. JB: How is that?

[00:02:31] Dr. Lopatin: I don’t have good answer for that. What I can tell you is my lawyer immediately pushed to drop the suit. The prosecuting attorney would not drop the suit. It stayed on for a year and a half, he refused to drop it until finally my attorney threatened a citation for contempt. In Pennsylvania, we have, we currently have what’s called a certificate of merit, which must be registered before a lawsuit can be filed. That took place in 2002, after this lawsuit. Had that been in place at the time of the lawsuit, would not have been able to go through, the plaintiff’s attorney was never able to get an expert witness to testify against me. Wouldn’t make a statement that I had done anything wrong, but yet he kept the lawsuit going for a year and a half, I guess maybe he hoped I would settle or do something in that regard. But it’s an example of the abuse that can occur in the medical legal setting by an unscrupulous attorney. I mean, not all attorneys are unscrupulous, but this one was.

[00:03:28] Dr. JB: So they oftentimes say that when a patient is suing a provider or whatnot, they try to put as many names as possible, so is that kind of how you got tied into this?

[00:03:41] Dr. Lopatin: I don’t know on this suit. On the second suit, I can tell you that’s what happened. Second suit was also a woman with fibromyalgia whom I saw, treated her for musculoskeletal aches and pains, she was doing fine. In March of, I guess, ‘19– I lose track of the years– in March of that year, she developed hearing loss and went to see an ear nose and throat doctor who diagnosed with auto-immune sensory neural hearing loss. He put her on high dose steroids, 60 milligrams of prednisone, and recommended that she see another rheumatologist that he was familiar with. She saw that rheumatologist once, found that he did not accept her insurance, and then asked to come back to me on an emergency basis.

[00:04:18] I saw her on an, I saw her on an emergency basis and she became my patient again. In June of that year, she developed knee pain. Now keep in mind, she’d had aches and pains in multiple joints for 10 years, so it wasn’t really anything striking for her to complain of pain. But this was one joint. I ordered an MRI of her knee, which ultimately revealed avascular necrosis, and this was about six weeks after she started the steroids. And basically, she sued for being on the steroids and sued me simply because I was a treating physician. This is what you’re talking about is, I happened to be taking care of her. That was my crime. She claimed she should never have been started on steroids, she questioned if she had auto-immune sensory neural hearing loss. I couldn’t comment on that, but I got named in the suit. Now I practice outside of Philadelphia, in one of the suburbs, because the ear nose and throat doctor practiced in Philadelphia, the lawsuit was taken to Philadelphia. And my attorney advised me, he said to me, you’ve done nothing wrong. Your care has been well-documented you took good care of her. You didn’t do anything wrong. And he said, now throw that out the window, it doesn’t matter because this case is going to go to Philadelphia and the result of this case is going to depend on how the jury views her or how sympathetic they are to her. That’s, it’s going to dictate what kind of verdict there is. He advised me to settle. That was–

[00:05:38] Dr. JB: So you did nothing wrong, the advice was for you to settle?

[00:05:43] Dr. Lopatin: That was traumatic for me because I taught my kids, you fight for what’s right. But by the same token my, my home was at risk potentially, if the verdict exceeded the amount that the insurance would cover, because of the rules in Pennsylvania at the time, I was a hundred percent responsible for any fee, any verdict and so forth. The ear nose and throat doctor was sued, but if they couldn’t pay, I was responsible for the whole thing. Even if I was only 1% responsible for what had happened to her; as it turned out, I was 0% responsible for what happened to her. And in fact, I got her off the steroids very quickly, actually a little bit too quickly, but the argument was that because she was on steroids, she suffered an adverse event.

[00:06:24] So in this case I was sued because I was taking care of a patient who had an adverse reaction to a medicine prescribed by another doctor, even though I A- identified that adverse reaction and got her off the steroids quickly, but because the laws and the legal environment at the time, especially in Pennsylvania. I settled a lawsuit when I didn’t, when I knew I had done nothing wrong.

[00:06:47] Dr. JB: So, so let’s take a couple steps back when you mentioned, you could be responsible for 100% of the lawsuit, even though, let’s say hypothetically, you were found to be responsible for 1%, like, how does that work? Like, I don’t understand.

[00:07:00] Dr. Lopatin: It’s called the doctrine of joint and several liability. And basically what the doctrine says is that should a plaintiff be deprived of their right, the proper verdict, because one of the defendants can’t pay, in that setting it’s, the other defendant should pay so that the plaintiff has made whole, regardless of how much the defendants did. And then it will be up to the defendant to get the money from the other defendant. So in this case, if I was 1% responsible, and the ear nose and throat doctor could not pay, I would be responsible to pay a hundred percent and that will be up to me to go after the ear nose and throat doctor to get half of the money that was, would have been their share. And the idea is to protect plaintiffs from getting sued, to get a proper redress, but the issue is it punishes doctors who did nothing wrong, who had a of minimal role, by forcing them to pay the entire fee.

[00:07:57] As it turned out, the other rheumatologist also was named in this suit, but he got dropped because he didn’t have insurance and he had done nothing wrong, he only saw her once, but still the argument was he doesn’t have insurance. We can’t get money from him, so we don’t want him in this lawsuit. I was the deep pockets in the case. So there’s a lot that goes on that has nothing to do with the care that you provide. And it’s important to realize that for physicians, that this is not a statement on their abilities, their skills, or the care that they provided necessarily.

[00:08:32] Dr. JB: Well, how does that affect you, when you got that notice that you were named in the lawsuit? Can you walk us through, like, what were your feelings, what went through your mind?

[00:08:41] Dr. Lopatin: Okay. The first one came on a Sunday night at 8:30. I just put my kids to bed. There was a knock on my door and a man there says, are you Dr. Mark Lopatin? Said, yes, he then hands me papers. I was horrified. I was trembling. It was horrible because the lawsuit doesn’t just say you’re being sued for failure to diagnose a brain tumor. It says wanton disregard and reckless endangerment and all kinds of catchphrases. But I later found are there on purpose, they’re boiler plate designed to instill the exact reaction they instilled in me, which was fear, a doctor who was afraid– and I was afraid– is much more likely to settle the lawsuit. And in a survey, you say, well, why would a doctor settle a lawsuit when he didn’t do anything wrong?

[00:09:29] According to a survey I posed, over a thousand physicians in Pennsylvania, approximately, Well, more than 80% of settled lawsuits were settled by doctors who felt they had done nothing wrong. Now, whether they had done something wrong or had not done something wrong, they felt they had done nothing wrong and they were willing to settle. And lawyers know that doctors are willing to settle because of fear or to just get out of it. It’s so much pressure and so much trauma just to make the whole thing go away, you settle. Lawyers know that. When I got that first knock on the door, I was horrified. The second lawsuit, I never got served on papers, I found out over the phone. The first rheumatologist had called me two months after the first lawsuit to ask me why he was named in the lawsuit, and he informed me that I was named in the lawsuit. I never was served with papers. But the whole thing was extremely traumatic.

[00:10:23] As I speak with you now and I revisit this, I’m trembling as I talk about it. This is 20 years later, but I’m still literally, still here literally shaking and trembling as I talk about this. It’s extremely traumatic. I required counseling, I had to get counseling to get through it. Even now, although it’s difficult for me to talk about, I think it’s important that other doctors hear because isolation is so, such a damaging factor in these kinds of cases and physicians need to hear that they’re not alone. They need to know that most doctors are going to get sued, that kind of misery loves company, but that sense of isolation is horrible. When you’re named in a lawsuit, you’re not allowed to talk about it. You’re not allowed to discuss the details. My partners knew that I was getting sued, but they knew nothing about why or how or what. I could share it with my wife, but no one else. I had no way to vent, to get my anger out, it’s very, very difficult.

[00:11:16] Dr. JB: And so, with– what happened with the third one?

[00:11:22] Dr. Lopatin: Third one was worse than the first two. This was not a lawsuit, this was a case– this was before the opioid crisis when pain was the fifth vital sign and physicians were being charged with not addressing pain adequately in their patients. And again, I saw chronic pain patient– all three of these cases were chronic pain patients– in this case, she was on Vicodin when she came to see me, at a low dose. I slowly increased the dosage of Vicodin and changed her over to a long-acting drug, Oxycontin, which was what the recommendations were at the time, I followed the recommendations. The idea was to have people on long-acting opioids and do you short acting opioids for breakthrough pain. I got up to a high dose, she stabilized, her pain improved. She was on that dose for three years and then she had something else go wrong requiring a hospitalization, and the doctors there saw the high dose of opioids. Keep in mind at the time, the teaching was there’s no ceiling to opioid dosages. It’s different now, but back then there was no ceiling, there was no talk of end organ damage, addiction was a function of the individual patient, not the drug. That is not true, but that was what the teaching was then.

[00:12:31] So they saw this high dose of Oxycontin and said who did this to you? You shouldn’t be on this high dosage and they told the husband. The husband reported me to the state board of medicine. On top of that, they discounted her current chronic pain, they said she’s not really in pain, there’s no such thing as fibromyalgia, so the husband got very angry, took me to the state board, unbeknownst to me, was looking to set an example of not prescribing opioids. This was again before the opioid crisis.

[00:13:01] Dr. JB: How did you know they were looking to set an example?

[00:13:03] Dr. Lopatin: I found that I’d have to work through political means. I didn’t know it at the time. And they hired a quote, “expert witness” who had done a one-year family practice residency in the 1960s. This is around 2004. So, he’d done a residency 40 years– an internship 40 years earlier, he had done no residency. He had no training in rheumatology whatsoever. He made his living testifying, as a, as an expert witness. When we called that to the state board’s attention, they didn’t care. And we talked, told them that he wasn’t qualified, they didn’t care. And they said the legislation that had come through in 2002 required expert witnesses to be board certified in the same specialty as the defendant, is not board-certified in rheumatology and the state board said we don’t care. We don’t have to follow those recommendations. This is not a lawsuit. So if they found me guilty, they could have taken my license away, they could have destroyed my career. Well, this expert witness who not only was not qualified to testify, proceeded to issue a report, which had at least 25 errors of fact.

[00:14:14] Now let, let me clarify what I mean by that. You’re an ER doc, someone comes into the emergency room and you start them on 10 milligrams of a medicine and they say you shouldn’t have started him on 10 milligrams, the proper dose was 2 milligrams. That’s an opinion, there are different ways to do it. That’s an opinion. And you could say, I’m right. He’s right, whatever. But this doctor said you should have started the patient on 20 milligrams, instead of 50 milligrams and a review of the chart reveals I did start on 20 milligrams, so that’s an error of fact. He’s saying I didn’t do something that, or I did do something that I didn’t do. He first had said there was no history and physical on the chart. He criticized me for that. There was a history and physical on the chart. He said, you failed to diagnose fibromyalgia tender points. They were documented. So he’s accusing me of not doing things that the chart clearly documents I did. There were at least 25 errors like that. The state board didn’t care. They were looking to set an example and the truth was not about to get in their way. In fact, I wrote an article about this a number of years later, and the title of the article was “The Facts Didn’t Matter.”

[00:15:20] You hear now, you talk about alternative facts, that’s what happened in this case, they didn’t care about the truth. They were looking to find a physician guilty to send a message to other physicians that you shouldn’t write for narcotics. So ultimately there, I went to Harrisburg for two-day trial. The expert witness was put on the stand. He was on the stand for a day and a half. My attorney cross-examined him. We had an expert witness board-certified in pain medicine, pain management. He was on the stand for a day and a half. They put me on the stand. And again, trembling the whole time I was on the stand for 20 minutes, because every question they asked me, I had an answer to, they didn’t want me on the stand.

[00:15:59] Ultimately, I think they realized that they didn’t have a case against me. They issued a ruling against me however, that I had to take a course on prescribing opioids, an online course which frankly was a course I could have taught. But I did the exercise and went through it. I don’t know if I ever got sanctioned for this because a few years later I was serving as president of my county medical society and these sanctions came through my desk and I got to see them all around the time. Trial took place. My name was never listed, so I don’t know if they ever took any sanctioning action against me. My license was not threatened and so forth. The hearing examiner determined that my care did not drop below the standard of care, but I had the patient’s best interests at heart and a state board ruled against me for quote, “unprofessional conduct,” even though the state examiner specifically stated that was not the case.

[00:16:50] Dr. JB: That doesn’t make any sense!

[00:16:55] Dr. Lopatin: It does when you have a prior agenda that has nothing to do with the truth. And their agenda was to dissuade doctors from writing for opioids. It worked, I stopped writing for opioids. I no longer treated chronic pain patients. It worked, I referred all my patients to pain management thereafter. I actually looked through the state medical society, looked into hiring an attorney to go after the state board and go after the expert witness. The expert witness had immunity. I could not go after him, even though he gave fraudulent testimony designed to protect the expert witness. And this case was not covered by my malpractice carrier. It was not a malpractice case. My defense costs more than $30,000 for this to go after the state board, they had to reverse a ruling from the Supreme Court of Pennsylvania. So I would’ve had to go to the Supreme Court to get them to rule that I could go after the state board. And then I’d have to go after the state board. He said, it’s going to cost you another $25,000 minimum.

[00:18:00] Dr. JB: After the $30,000 you already spent?

[00:18:02] Dr. Lopatin: After the $30,000 I already spent to defend myself and I said, it’s not likely for success. I can’t risk spending that much money for a verdict. But what I did do was write about it and publicize it. And I’m still doing that. And that’s what I’m doing here. Publicizing it to let others know what goes on because I think publicity is the best weapon. I actually wrote about this case recently, besides the article, I wrote about it in Kevin MD, the blog, and posted it with the idea that publicity is our best weapon against inappropriate legal tactics.

[00:18:37] Dr. JB: You mentioned that the expert witness had immunity, even though he was not factual on the stand. Is that how it is for any expert witness or just this particular one?

[00:18:50] Dr. Lopatin: I don’t know. That’s what I was told by the attorney that I spoke with. He said he was the expert, witnesses have immunity. Now I imagine there’s some rules for egregious, I’m guessing, that there’s some rules for egregious testimony and so forth and false testimony, but I would’ve had to prove that. I’m going to have to go to the Supreme Court to demonstrate that this went beyond the norm and so forth. He just got his money for testifying, whatever it was, $300 an hour for his testimony and the state board was fine with that. The ironic thing was they eventually threw out his testimony and said we don’t need his testimony. We’re going to make a decision without it. And yet, without his testimony, there was no case. It was nonsense. It was as one person wrote, it was a kangaroo court. It was a kangaroo court engineered by the state board of medicine with the goal of dissuading physicians from writing for opioids. And there’s good reason to do that. I mean, I don’t disagree with that. However, you can’t put the square peg in the round hole. You have the, you have to have the case that fits to make your argument. You can’t just pick a random case and say, we’re going to make this fit even if we have to lie about it.

[00:20:08] Dr. JB: That’s right. And so, with them throwing out the case or throwing out the testimony, essentially it almost looks like you won, right? Did that make you feel any better, having won that case?

[00:20:26] Dr. Lopatin: Well, I didn’t win in that sense. I did have to take the course. They had to save face. They still charged with unprofessional conduct. Interestingly, as a result of this case, the state board, I mean, I complained bitterly but the state board informed me that in the future, they would require their experts to meet the same criteria that a lawsuit would have required so they said they were changing their rules. Once again, the rules got changed after my case. The rules have been in place, on all three cases, if the rules have been in place at the time of the case, it would not have happened. If the joint and several liability had not been in place at the time of my second lawsuit, I wouldn’t have settled. It. It was the threat of being responsible for a hundred percent of the verdict. The venue was changed. If the venue case existed, rules that are in effect now existed at the time, the case would not have been gone, would not have gone to Philadelphia, I would not have settled the case. The first lawsuit, they would not have been able to name, to bring who they didn’t have an expert witness. And in this case, if they had required at the, followed Act 13 legislation passed in 2002, they would not have been able to use this witness. So all three cases, all three went through because of a rule that was in place at the time that subsequently got changed after my lawsuit.

[00:21:42] Now, part of me feels a little bit good about that in a sense that rules got changed. In the case of the state board, I think it got changed because of my case, at least I hope so. So, the hope is that no one else will have to go through what I went through on that basis, so that makes me feel good. But I needed more counseling after that second, um, after the trial to get through this.

[00:22:00] Dr. JB: Well, can you talk to me a little bit more about like what you were experiencing that made you realize that you actually need to get more help and get counseling?

[00:22:10] Dr. Lopatin: Most striking thing was anger, was the most striking emotion. I mean, the sense is I was violated. I was violated. I can’t begin to talk about what a woman feels when they get raped, but the word that commonly gets used is violated. And that’s the word that I use to describe what happened to me. I had someone testify against me who lied, who outright lied and people didn’t care about that. And I firmly believe in the truth and I believe in facts and evidence and so forth. And you can’t just make your argument based on what you want the results to be and ignore the facts. So that was horrible for me. I had such anger in the first case that I was sued for something so ridiculous to how can you sue me for failure to diagnose a brain tumor outside my specialty?

[00:23:06] And the second case I was angry because the patient had turned against me. And my belief is what happened was she went to a lawyer regarding the ENT doctor and he said let’s name everybody because we got a better chance of getting money. He was right. It was a business decision. And one of the things I’ve preached to other physicians is when you get sued, you have to recognize this is not about you as a physician. This is not about your skills is not about your sense of self-worth. This is a business proposition. I know of one case, a physician was being sued and they went through the whole case and the jury was out deliberating. While the jury was deliberating, the plaintiff’s attorney approached the defendant and said to him, I have another case, I’d like you to be my expert witness on that.

[00:23:53] Dr. JB: What!?

[00:23:54] Dr. Lopatin: The plaintiff’s attorney recognized that this was a good physician. It didn’t matter. It didn’t matter. It is, there’s lots of reasons that lawsuit happened. And I had to learn that it doesn’t have to do it has nothing to do with my self-worth or my skills as a physician or my abilities. So it’s nothing personal. And I preached that to physicians. To attorneys, when I lecture on the subject, I tell them it’s very personal. When you named somebody in a lawsuit, you’re harming them and you need to have a good reason to harm and you can’t just do it willy nilly. I mean they do, some of them do. I mean, lawyers tell me that frivolous lawsuits do not occur. That’s just not true, based on my cases. They say it’s not worth the time and energy, but more than 80% of physicians are willing to settle a lawsuit even though they know they knew they had done nothing wrong or they felt they had done nothing wrong. Yeah, you can bring a frivolous lawsuit and get money out of it.

[00:24:51] So to the lawyers, I tell them it’s very personal. And if you’re going to sue somebody in the humane world, you need to have a good reason to do so. So I preached to both ends of the spectrum in terms of that. But a physician loses a lawsuit as soon as he’s named. I had a colleague of mine who won his lawsuit. The verdict was he was not guilty and I congratulated him on it and he said Mark, what are you congratulating me for, what have I won? I’ve spent weeks agonizing over this. I spent weeks studying this, researching this, pouring through the chart, trying to see, you know, make an argument. I’ve missed time for my practice. I’ve lost money from my practice, my patients have not been able to see me, tell me what I’ve won. And the lesson from that is a physician loses a lawsuit as soon as he’s named, regardless of the verdict.

[00:25:43] So what I did with this was, as I said, growing up, I was very naive. I didn’t know what a Democrat was or a Republican was until I was more than 40 years old. I just didn’t know what didn’t matter. Yeah. So I was more than 40 years old. I didn’t know that. You asked me what does a Democrat represent? I don’t know. Well, I started getting politically active and for the first few years I was very out active and very outspoken in the world of tort reform. I gave lectures on how tort reform affects patients, the need for defensive medicine, how that compromises the care that patients would receive. I joined an organization called the Politically Active Association in Pennsylvania. Ultimately I joined my state medical society and my county medical society, lectured, became very real op eds in the newspapers, campaign for political candidates who supported the need for tort reform. I jumped in both, you know, both feet forward. I jumped in at the same time and in a way, although this was traumatic for me, I actually tried to make lemons out of the lemonade, or lemonade out of the lemons, I should say.

[00:26:55] And because of my activity, my life tremendously enriched by what I’ve done. I’ve spoken numerous times, I’ve written numerous articles and so forth, including a book I just got done writing. And it enabled me to have experiences I never would have experienced had these things did not take place. However, having said that, I wish these things would have never taken place in the first place, but I made the best of them.

[00:27:19] Dr. JB: Well, it definitely sounds like you did. One question that I have is after having gone through these experiences and gotten sued because three times, how did that affect your practice and how long did you continue to work as rheumatologist? You mentioned a couple of things already in terms of you stopped seeing, prescribing narcotic medications, but how, what are other ways that it affected you in your practice?

[00:27:43] Dr. Lopatin: Well, the first thing that happens is you become very suspicious of patients. You work start worrying is this patient going to Sue me? What if they have an adverse reaction to this medicine I’m prescribing? I know it’s the right medicine, but what if they have an adverse reaction? I can’t guarantee they’re not going to. So all of a sudden people that you are swore to help, you wonder if they’re your adversaries. So it creates hostility. There was one patient in particular that comes to mind who came to see me a short time after this autoimmune sensory neural hearing loss case settled. And she came to see me and said, my doctor referred me to you. I have autoimmune sensory neural hearing loss, and he wants to talk about immunosuppressive agents for it. I said I can’t take care of you. Just based on that diagnosis. I could not emotionally, I’m human. I could not emotionally care for that patient after what I had experienced. And I told her right up front, she was not happy with me. I was honest with her. I told her what had happened and I referred her to one of my partners, but I couldn’t do that. And I’m not alone in that regard. There was a study of 220 physicians in Cook County, Illinois, who got sued. And half of them stopped doing certain practices after they got sued, whether it be a GYN doctor who no longer delivered babies, for example, or they didn’t do certain kinds of surgery, half of them changed their practice or stopped seeing certain kinds of patients. 10% contemplated suicide. And these were all lawsuits that these physicians won.

[00:29:15] Dr. JB: Oh wow, after winning it, they still contemplated suicide.

[00:29:20] Dr. Lopatin: These are the lawsuits that they won. And I know of one physician who was named in a lawsuit who actually did commit suicide.

[00:29:28] Dr. JB: Wow.

[00:29:29] Dr. Lopatin: So it can be devastating to the psyche and that’s why it’s so important that this be talked about and that people understand that others have gone through it, have survived, have flourished despite this, with the idea that maybe they can too. And hearing someone else’s story may be helpful to those who are going through this. And I would venture to say that of your physician listeners, at least a third of them are involved in an active lawsuit at this time. Again, based on the survey I conducted 20 years ago, a third of them had an active lawsuit going on at the time of the survey. And half have been sued within the five years previous to that. So it’s a very common problem, it’s one that doesn’t get talked about. In terms of advocacy, healthcare advocacy, at least in Pennsylvania, tort reform has fallen by the wayside. It’s not been an active issue right now. Joint and several liability reform has come into place. Venue reform has come into place, although that’s being threatened again.

[00:30:27] It’s not been an active issue with it and other issues have taken its place, scope of practice, maintenance of certification, prior authorization that physician groups are focused on, but tort reform can rear its head again very easily and that may happen in Pennsylvania if the venue ruling gets reversed.

[00:30:47] Dr. JB: I mean, I’m still taken aback by that comment in terms of how detrimental being involved in a lawsuit can be to a point where, somebody can die by suicide from it.

[00:31:00] Dr. Lopatin: I can tell you, not my personal experience but from people I know, and I’m convinced that I have PTSD. I’m convinced that I do. I’ve never been formally diagnosed. But you know what, I tell you that I started talking about it and I started shaking. That’s a clue. I’ve come to grips with that, come to terms with it, but there’s no doubt that this has affected me. I’ll get my wife down here, let her tell you that, she’ll tell you all that in terms of how this affected me, because no matter how much I vented to her after all this happened, I could not get the venom out, get rid of the venom inside of me. I could not get rid of the venom. And besides the anger, there’s feelings of self-worth. Am I a bad physician? Am I a bad person? No. When you get sued as a physician, it’s a lot different than getting sued for being in a car accident. When you meet someone at a party, you judge them right off the bat, about how old they are. One of the first questions you might ask is, are you married? Do you have kids? One of the first question you ask is what kind of work do you do? We identify ourselves by our professions, our work, it’s part of our identity. When you get sued for a car accident, you don’t identify yourself as a driver, it doesn’t hit your core identity. Getting sued as a physician does, you know, your sense of self-worth, your sense of self, that’s hard to overcome and it takes a lot of conscious thought and realization, logical thought to overcome the emotions of, am I a bad person? Am I bad doctor? Did I hurt somebody? Those feelings are horrible feelings. And I had all of them. In addition to the anger at being wrongfully sued.

[00:32:37] Dr. JB: And so how did you tease that apart, how did you separate this from your sense of self-worth?

[00:32:45] Dr. Lopatin: Becoming an advocate helped a lot. Fighting for patients in other arenas. Realizing that I take good care of my patients. I care about my patients, spending 15 minutes on the phone with a peer-to-peer fighting for a patient gives me a sense of self-worth. Seeing patients do well gives me that sense of self-worth. Talking with other people from across the country in advocacy made me realize, Hey, I’m not alone, and fighting for patients has helped to restore that.

[00:33:15] Dr. JB: It sounds like you, you lost your sense of self-worth in the midst in these lawsuits, and now through all these other activities, you’re regaining it.

[00:33:25] Dr. Lopatin: Well, I’ve regained it. It’s not I’m regaining it now, I’ve regained it. But the other thing I left out is the counseling. I had to go through counseling on two separate occasions to help me with that. I mean, that was probably the major thing. I mean, I left it out, but that was the most important thing in terms of helping me restore and even heal to my career and so forth. And I highly recommended –counseling is taboo, you have to do counseling. And there are some reasons that it’s taboo. You know, hospitals may discriminate against physicians who if they admit to having gotten counseling, you’re viewed as maybe lesser. “What’s wrong with you? You needed counseling?”

[00:34:01] No counseling is a sign of strength. It’s a sign that you recognize a problem and you seek to fix it the same way you would fix it by seeing an endocrinologist if you had diabetes, or seeing a rheumatologist if you had joint pain. You wouldn’t be charged with, “well, you should tough it out, you should just deal with the joint pain.” Getting help for it is a sign of strength, not a sign of weakness. That’s how I view it. Not everybody views it that way, but that’s a message that I want to get across is get the help you need restore yourself.

[00:34:30] Dr. JB: Yeah, it’s true. It is a, it’s a sign of strength. Wow. So, and then how many years did you continue to practice until you retired?

[00:34:40] Dr. Lopatin: That, the opioid case before the state board was resolved in 2006, I retired in 2020.

[00:34:49] Dr. JB: Okay.

[00:34:49] Dr. Lopatin: And that was for separate reasons. So had to do with another stressor in terms of what physicians go through. There’s a lot of them prior, maintenance of certification, et cetera, in this case, it was made, it’s a certification I refused about out of the American Board of Iinternal Medicine to take boards for fourth time after I’d passed them in 1990, 2000, and 2010, I said, that’s not a measure of who I am as a doctor. And you’re defining me by whether or not I can pass a test on a given day. It does not define who I am and I refuse to genuflect to you in that regard.

[00:35:22] Dr. JB: Gotcha. Got it. So, with this being said, do you have any words of wisdom for, or pearls of wisdom for my listener?

[00:35:38] Dr. Lopatin: Depending on the audience, first off, if you’re talking to people who have been sued or being sued. Understand that the lawyers are not coming after you as a person and your abilities as a doctor have nothing to do with it, they’re focused on one specific thing and if they can get redress for their client, which is their goal. This is strictly business. Two, I encourage wherever possible, physicians to talk about this. The isolation is devastating for this. You’re not allowed to talk about it and I encourage people to talk. Well again, with the advice of their lawyer, but it’s to not wear it as a badge of shame because you’re not alone. And if you wear it as a badge of shame then other people cannot hear your story, you cannot hear other people’s story. And you’re just going to be left alone, wearing that badge by yourself. Recognize it’s not a commentary on who you are as a physician or how good you are or anything like that. So that would be the advice.

[00:36:37] And of course, when things get rough, if they get rough enough, seek out counseling, get help. Don’t try to tough it out with the idea of “I should be able to deal with all this,” because it’s tough to deal with someone who’s attacking you, who’s lying. That’s just a lot for someone to handle in a world where we like to say that fairness exists and that verdicts are based on good reason. It’s tough to realize that it doesn’t always work that way. So it’s normal. It’s an appropriate reaction to be angry at that, but it’s not a, it’s not a feel-good reaction. And when you, when you break a bone, it hurts, you don’t take the approach of, well, when you break a bone it’s supposed to hurt, so I’m not going to get help for it. You get help for it and get it fixed as best you can.

[00:37:30] And to that end, I mean, I, what I did was with all this, like I said, I’ve written a lot. I actually wrote a book outlining all this and talking about the humanity in medicine and the need for humanity in medicine and the idea that the humanity is being sucked out of medicine in terms of how we take care of patients. So I encourage physicians to realize that humanity, you recognize that humanity and try to restore consciously into what they do every day. As I said in the book, that healthcare should be a human interaction between a patient and their physician, rather than a business transaction between a consumer and a provider.

[00:38:08] And even the use of the word provider dehumanizes the care that we give. I’m not a provider, I’m a physician. And being a provider diminishes what we do. There’s systematic and intentional effort to devalue what physicians do. Don’t give into it, recognize it for what it is. I used to get on insurance forms, where it said provider, I used to cross off the word provider, write physician, not a provider. So these are little things, to maintain your self-respect and not give in to the bureaucracy dictates how medical care is provided. Again, you have to recognize it and be willing to stand up to it. And that’s what I’ve done and that has helped me immensely.

[00:38:53] Dr. JB: Can you elaborate a little bit on your feelings and views about the two terms provider versus physician?

[00:38:59] Dr. Lopatin: Provider versus physician, oh, okay. There is a great piece in the New England Journal of Medicine that talks about this. Can I read that to you? That’s even better than I can describe and it’s so telling, and it’s so good. This is written by two doctors, Pamela Hartzband and Jerome Groopman, in the new England Journal of Medicine, and they say the following: “The words we use to explain our roles are powerful. They set expectations and shape. It’s changing the language of medicine has important deleterious consequences, the relationships between doctors, nurses, or any other medical professionals and the patients they care for are now cast primarily in terms of a commercial transaction, the consumer or customer is the buyer and the provider is the vendor or seller.

[00:39:46] To be sure there is a financial aspect of clinical care, but that is only a small part of a much larger whole and do people who are sick, it’s the least important part. The words consumer and provider are reductionist. They ignore the essential psychological, spiritual, and humanistic dimensions of the relations, the aspects that traditionally make medicine a calling in which altruism overshadowed personal gain. Furthermore, the term ‘provider’ is deliberately and strikingly generic, designating no specific role or type of level of expertise, each medical professional– doctor, nurse, physical therapist, social worker, and more– has specialized training and skills that are not recognized by the all-purpose provider, which carries no residents of professionalism. There was no hint of the role of doctor’s as teacher with special knowledge to help the patient understand the reasons for the malady and the possible ways of remedying it, no honoring of the work of the nurse as a nurturer with unique expertise with close care is essential to healing.

[00:40:49] Rather the generic term ‘provider’ suggests that doctors and nurses and all other medical professionals are interchanged. ‘Provider’ also signals that care is fundamentally a pre-packaged commodity on a shelf that is provided to the consumer rather than something personalized and dynamic, crafted by skilled professionals and tailored to the individual patient.” That says it’s so much better than I could ever hope to.

[00:41:12] Dr. JB: Who says a doc can’t rap? D O C T O R J B. The greatest doctor to ever touch the mic. The greatest podcast ever broadcasted or prerecorded. Come learn some, each one, teach one. I’m done.