Difficult Conversations Podcast
Lessons I Learned as an ICU Physician
Episode 144 | May 18, 2021
Medical Justice And Malpractice
Jeffrey Segal, MD, JD
Founder of Medical Justice
Hello and welcome to Difficult Conversations -Lessons I Learned as an ICU Physician with Dr. Anthony Orsini. My special guest today is Dr. Jeffrey Segal, who is the CEO and Founder of Medical Justice. He was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases. He holds an M.D. from Baylor College of Medicine. He received his B.A. from the University of Texas and graduated with a law degree from Concord Law School with highest honors. In the process of conceiving, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues and internet-based assaults on reputation. As always, Dr. Orsini keeps his promise about two things, that you will feel inspired, and you will have learned valuable lessons to be a better and more compassionate communicator.
Jeff shares his journey from being a neurosurgeon to a lawyer, which includes an incredibly inspirational story about his brother. He explains how being open, honest, and transparent with a patient can help limit a doctor’s risk of getting sued. He shares advice about the importance of saying you are sorry when a medical error occurs, Advice he follows from a book called, Sorry Works! We hear Jeff’s opinion on why there is often a pile-on when a patient is unhappy and he gives advice on how to avoid it. Dr. Orsini tells a story about his dad and why it’s important to have the right tools before you need them. Jeff explains why it’s important to be prepared and have proper communication skills before problems occur. Finally, Jeff gives advice on what to do if you’re a physician who’s done his best, followed all the advice given to him, and still gets sued. We end with Jeff telling us two difficult conversations he’s had in his life and advice on how he navigated through them. Jeff tells us how you to get a free confidential consultation at Medical Justice. If you enjoyed this podcast, please hit follow, and download all the previous episodes to find out more about what we do and how we teach communication. Go ahead and download this episode now!
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Dr. Jeffrey Segal (1s):
Meaning that if you practice medicine, you will likely be in the crosshair at some point. It is impossible to see 1 to 3000 patients a year and not have conflict at some point. In particular, something that manifests itself as professional liability, the stats are pretty clear. And this is, I guess this is somewhat sobering. This is a study that was put out in the new England journal of medicine about a decade ago. But it said that if you are a high risk surgeon, which means any surgeon, the likelihood of you going to age 65 and never being sued is less than 1%, less than 1%.
Dr. Jeffrey Segal (41s):
If you are a low risk individual, for example, a pediatrician, for example, or an intern, it’s those who have long relationships with patient, the likelihood of you going an entire career without being sued is still about 25, 30%.
Welcome to Difficult Conversations: Lessons I learned as an ICU physician with Dr. Anthony Orsini. Dr. Orsini is a practicing physician and President and CEO of the Orsini Way. As a frequent keynote speaker and author, Dr. Orsini has been training healthcare professionals and business leaders how to navigate through the most difficult dialogues. Each week you will hear inspiring interviews with experts in their field who tell their story and provide practical advice on how to effectively communicate. Whether you are a doctor faced with giving a patient bad news, a business leader who wants to get the most out of his or her team members or someone who just wants to learn to communicate better, this is the podcast for you.
Dr. Anthony Orsini (1m 44s):
I am honored today that The Orsini Way has partnered with the Finley Project to bring you this episode of Difficult Conversations: Lessons I learned as an ICU Physician. The Finley Project is a nonprofit organization committed to providing care for mothers who have experienced the unimaginable, the loss of an infant. It was created by their founder, Noelle Moore, whose sweet daughter Finley died in 2013. It was at that time that Noelle realized that there was a large gap between leaving the hospital without your baby and the time when you get home. That led her to start the Finley Project. That Finley project is the nation’s only seven part holistic program that helps mothers after infant loss, by supporting them physically and emotionally. They provide such things as mental health counseling, funeral arrangements, support, grocery gift cards, professional house cleaning, professional massage therapy and support group placement.
Dr. Anthony Orsini (2m 38s):
The Finley Project has helped hundreds of women across the country. And I can tell you that I have seen personally how the Finley Project has literally saved the lives of mothers who lost their infant. If you’re interested in learning more or referring a family or donating to this amazing cause please go to the Finley Project.org. The Finley Project believes that no family walk out of a hospital without support. Well, welcome to another episode of difficult conversations lessons I learned as an ICU physician. This is Dr. Anthony Orsini, and I’ll be your host again this week. Today, my guest is Dr. Jeffrey Segal, who is the chief executive officer and founder of medical justice. Dr. Segal was a practicing neurosurgeon for approximately 10 years.
Dr. Anthony Orsini (3m 21s):
During which time he also played an active role as a participant on various state sanctioned medical review panels, designed to decrease the incidence of meritless medical malpractice cases. He holds an MD degree from Baylor college of medicine, where he also completed a neurosurgical residency. Dr. Segal served as a spinal surgery fellow at the university of south Florida medical school. He is a member of Phi beta Kappa, as well as the AOA medical honor society. He received his BA from the university of Texas and graduated with a law degree from Concord law school with highest honors. In the process of conceiving funding, developing and growing Medical Justice Dr.
Dr. Anthony Orsini (4m 1s):
Segal has established himself as one of the country’s leading authorities on medical malpractice issues and internet based assaults on reputation. And I am really delighted to have him here today because this is going to be perfect for my audience. Jeff, thank you so much for taking the time out of your, what must be an incredibly busy schedule to be on this.
Dr. Jeffrey Segal (4m 22s):
I’m really excited to speak with you today. Thanks for the invitation.
Dr. Anthony Orsini (4m 26s):
Jeff and I got to know each other. You heard a podcast that I had done with Dr. Bradley Block. I believe you interviewed me for your podcast. We’ve gotten to know each other multiple times, and there’s so much parallels between what you do and your medical malpractice.
Dr. Jeffrey Segal (4m 42s):
You’re my long lost brother that took a while to meet.
Dr. Anthony Orsini (4m 45s):
Yeah. And I’m excited because I feel like there’s just loads of stuff that we can do together. I think this is going to be a long relationship. When I got to know you, Jeff And I think when people hear your intro and your bio, I think the first thing that everybody thinks is, oh my God, he went to school for a lot of years as a neonatologist. I, you know, I did four years of medical school. Then I did a rotating internship and that I did three years of residency, three years of fellowship. So that was seven years after medical school, 11 after college, you did neurosurgery and then went back to, to your law degree. So I know everybody’s thinking, I want to get to know this guy. So tell us about Jeff or you know, where you’re from and how you’ve arrived at this moment in your life.
Dr. Jeffrey Segal (5m 30s):
So I studied and trained to be a neurosurgeon. Yes, it was a long and winding road. How and why did I get into neurosurgery? And the answer is, I don’t know, but I think this probably had an impact many years ago, my younger brother, two years, junior to me, he walked into a convenience store in Austin, Texas, where he was going to college. Unbeknownst to him, it was being robbed. So he was marched into the back, placed faced down and shot execution style in the back of the head. Now, by the way, this has a happier ending, but he was left in the freezer to die. His girlfriend walked in there several minutes later, cause he had just walked in there to pay for $2 worth of gas and found him, appropriately freaked out called an ambulance.
Dr. Jeffrey Segal (6m 13s):
Now what happened next? The neurosurgeon came in, said he won’t make it through the night. He made it through the night. Then he said, well, if we operate on him, he’ll never wake up. he operated on him and he woke up. He says, well, he’ll never walk or talk again. He walked and talked. He does have deficit, but he was able to go back to college, graduate with honors and actually married his high school sweetheart. We attended his daughter’s wedding a couple of years ago. And here’s what he said. He said, thanks for, and there wasn’t a dry eye in the house, thanks so much for doing this wedding on this particular weekend, because for decades it was the anniversary of him being injured, almost fatally.
Dr. Jeffrey Segal (6m 59s):
And his daughter got married on that weekend. And so he said, that’s been replaced and I was crying like a baby man. I was dehydrated. I needed IV hydration just to not become hypotensive. But anyway, that almost certainly, I mean, he does have some deficits, but he went back and became a social worker, works at the country’s largest or probably busiest head injury unit at a county hospital. He’s a motivational speaker is really my hero in many ways and was very influential in me, at least thinking about neurosurgery as a career, which I then did. And to your point, like you, it is the road that never seems to end every time you turned around, there’s more stuff to learn and do.
Dr. Jeffrey Segal (7m 44s):
But finally I embarked upon a clinical career was doing that for 10 years and then got like many people. I got a hiccup in life where my son was diagnosed with pretty severe autism at the age of three and a medication resistant epilepsy. So what happened? We moved to North Carolina primarily to get services for him. I intended to take a year off to focus on him and then go back to doing what I knew how to do, which is practicing neurosurgery. In, in that one year window, I became convinced that a certain set of pharmaceutical compounds might help him. And they were sitting on a shelf at university of North Carolina and Purdue.
Dr. Jeffrey Segal (8m 27s):
So I naively asked what it would take to kind of move this along because I did think it would help him. They said, well, you got to raise some money. You got a license the compounds, you know, have a nice day. So I raised the money, we licensed the compounds and started a biotechnology company and research triangle park, North Carolina moved these compounds along from preclinical to phase two, before it was sold to a medical device company.
Dr. Anthony Orsini (8m 52s):
So by the way, you make that sound like it was so easy. Like we did that. That had to be incredibly hard, especially for someone who has no idea what they’re doing at the time.
Dr. Jeffrey Segal (8m 58s):
To burst my naivete propelled us forward. If I had known what I was getting into, neither I nor any other rational human being would have moved in that direction. So the key thing was just finding a bunch of people smarter than me and to, you know, the compounds were pretty good and that really helped. And we didn’t need thousands of patients to prove the point. That’s the beauty of having fairly powerful compounds with decent safety profiles, good safety profile, good clinical outcome profile. If you have that, you don’t need 10,000 patients to get a P you know, less than 0.05% is to demonstrate something on paper.
Dr. Jeffrey Segal (9m 39s):
But anyway, that didn’t happen overnight. It took a while. And after X number of years, I had a choice to make, do I go back to doing what I knew how to do, which was clinical practice of neurosurgery or something else. Now it had been five years since I’ve stepped foot in the operating room. And while I’m arrogant enough to believe that I could do it, I doubt I could persuade any rational human being to go under my knife. So I figured it was time to make a lateral move. And I started Medical Justice at that time. And I’ve been doing Medical Justice since then. Medical Justice was formed to keep doctors from being sued for frivolous reasons.
Dr. Jeffrey Segal (10m 20s):
More broadly now works to deescalate doctor, patient conflict, or really any conflict that a doctor might face, including the board of medicine, including employer, employee relationships, and so on. And we also now get involved with protecting and preserving a doctor’s reputation on the internet. And that is the whirlwind tour that takes us to present day and how we met actually.
Dr. Anthony Orsini (10m 46s):
That’s quite a story, the story of your brother. I think I need to get him on the podcast now. So what a great story he is,
Dr. Jeffrey Segal (10m 53s):
Man, he’s really a cool, I mean, I call him a kid. He’s not a kid any longer. I mean, he was injured decades ago, but the story never ceases bare-bones us to inspire. And you know, if anybody could pick himself up from the bootstraps, I mean, after you hear what he went through and you know, I certainly fast-forwarded, it really took awhile for him to just get back to just the bare bones basics. But he remembered when he was starting to make progress when he woke up in a rehab unit and he didn’t know what happened to him obviously. And he saw Rocky and Bullwinkle on television. If you remember that show?
Dr. Anthony Orsini (11m 31s):
Yes, I’m afraid I’m old enough to remember that.
Dr. Jeffrey Segal (11m 35s):
You know, the weird connecting of the dots, he thought he was in Russia. Somehow he gets a Boris Baton up. So I think that was when he started to wake up and realize he had a long road in front of him.
Dr. Anthony Orsini (11m 49s):
So many things that happen to us or to our family members shape who we are. And I had epilepsy as a child and thankfully I outgrew it, but we’ve had other people on this podcast. Marcus Engel was an early guest. Marcus Engel had went blind in a car crash and was spent a year in hospital. I don’t remember the number of surgeries he had, but he went blind instantly. And now Marcus Engel speaks about patient experience and is all lecture and a motivational speaker. Next week, I’ll be interviewing a gentleman called Jason Schechterle, who is a Phoenix police officer who got into a car accident, burned 40% of his body. And now he’s come through that. And they all give us a unique perspective on what it’s like to turn tragedy into triumph, but also give us a unique view of what it’s like to be a patient, which is so near and dear to my heart.
Dr. Anthony Orsini (12m 40s):
And they are experts in telling you what it was about a particular physician or nurse that they remembered in a fond way. And one that doesn’t. So, but that leads us to communication and malpractice. But first of all, your typical medical justice client, who would they be? And is there a particular part that’s kind of doctor that’s been contacting you more and more?
Dr. Jeffrey Segal (13m 2s):
The typical doctor is a doctor, meaning that if you practice medicine, you will likely be in the crosshairs at some point. It is impossible to see 1 to 3000 patients a year and not have conflict at some point. In particular, something that manifests itself as professional liability, the stats are pretty clear. And this is, I guess this is somewhat sobering. This is a study that was put out in the new England journal of medicine about a decade ago. But it said that if you are a high risk surgeon, which means any surgeon, the likelihood of you going to age 65 and never being sued is less than 1%.
Dr. Jeffrey Segal (13m 43s):
I believe that less than 1%, if you are a low risk individual, for example, a pediatrician, for example, or an intern, it’s those who have long relationships with patients, the likelihood of you going an entire career without being sued is still about 25, 30%. I mean, still a big number. Now the good news is you’ll prevail in most of those cases. But the bad news is that getting sucked into the process is onerous, painful, capricious and arbitrary. And you will feel as if you’re alone. And so the question ultimately comes down to how do I avoid this? How can I minimize the risk of being sued in the first place?
Dr. Jeffrey Segal (14m 26s):
And number two, if I am sued or get involved in conflict, how do I turn this around sooner rather than later?
Dr. Anthony Orsini (14m 36s):
And you know, I, in my book, I talk about my family doctor. And I don’t know if I’ve sent you a copy yet, but if I have it, I’ll have to get your address and send you a copy. But may I have your book in my book?
Dr. Jeffrey Segal (14m 50s):
I’ve read it and highlighted it. And people are listening out there, have not yet done that. What are you waiting for?
Dr. Anthony Orsini (14m 58s):
Thank you so much for that plug. “It’s all in the delivery” available on Amazon. In that book, I speak about my family doctor, who must be in that 20 to 25%, although he was not only a family doctor, he was an obstetrician in those days. He was so old his obstetric residency was only one year. That’s how long It was.
Dr. Jeffrey Segal (15m 14s):
He did it all. I mean, he probably did appendectomies at some point.
Dr. Anthony Orsini (15m 22s):
Almost 50 years of practice, not one malpractice lawsuit. And I learned by watching him and I think maybe that’s what shapes us. I watched him, he, me, he delivered me. And then I did my first rotation with him as an elective in a medical school. That’s how long he practiced. But I watched him with patients and I watched the way he looked into patient’s eyes and the way he smiled. And I tell everyone he was a good doctor. He wasn’t the greatest doctor in the world. You know, it was an average doctor and he made mistakes, but patients wouldn’t think about suing him. You know, Jeff, he was in the Italian section of Newark and I would say at least three out of four of his patients would bring him food.
Dr. Anthony Orsini (16m 3s):
They wouldn’t think of coming without food.
Dr. Jeffrey Segal (16m 4s):
And it’s interesting so he delivered you, but that’s not the meaning of “it’s all in the delivery”. You get a nice double entendre there.
Dr. Anthony Orsini (16m 15s):
It’s all in the delivery comes from a quote from WC Fields, the comedian who was asked once, why his jokes were so funny and his remark was it’s all in the delivery. And that’s exactly what that book’s about. Let’s talk about communication. How a doctor, you said you really helped them limit their risk of getting sued. How much does communication play in that? And how much can you help somebody who maybe doesn’t have the best bedside manner?
Dr. Jeffrey Segal (16m 42s):
So here’s, what’s fascinating. When I went into this, I had assumed that I’m not even sure what I assumed. I just assumed litigation was rampant and all sorts of things that were arbitrary and capricious just made this into a lottery and there may be some truth to that. But more often than not and don’t take my word from this. You can talk to plaintiff attorneys that deliver this message. They said, typically not always, but typically a patient will sue when they believe they’ve not been heard. A patient will sue when they believe they’ve not been heard, they’re looking for answers and a few up here, evasive or non-communicative and they’ve exhausted the traditional remedies to getting an answer.
Dr. Jeffrey Segal (17m 32s):
Their next step is well, they will pile on means they go to the internet to a voice their displeasure. They will yell at the front office staff and your employees. They will go to the medical board or they will go to an attorney to, to go through discovery, to find out the answers. So what does that mean? It means that if you make yourself available and you answer questions, preemptively in advance of the patient or their family asking the question you have already done so much to limit the likelihood of you being sued. Again, this is not the magic. This will work a hundred percent of the time, but it’s a game of odds.
Dr. Jeffrey Segal (18m 15s):
If you anticipate a patient’s questions and they believe, or their family’s questions may believe you have nothing to hide and that you are being open and transparent. You have already decreased the likelihood that you individually will be sued. That’s a home run already. Number two is that. And I think this is a point that you’ve driven home multiple times patients tend not to sue people they like. Patients not to say people they like it doesn’t mean they won’t because at the end of the day, if you’ve got a life care plan of $10 million and you’re destitute and you need the cash just to keep your room at the rehab facility, you’ll do what you have to do.
Dr. Jeffrey Segal (18m 55s):
By and large It will be a lot harder to do that. It won’t be as easy to do that. And not infrequently. There are multiple defendants on the chart. They don’t have to sue everyone. And so if a patient likes you and has a relationship with you, it may be that they sue everyone else and leave you alone. So those are the two things being open, honest, and transparent with a patient. And what was the second point that just, I went blank, right? Well, the
Dr. Anthony Orsini (19m 26s):
First point was a drop the mic point because I think that’s the most important thing that you said. Yeah. That light like you. And it really is. And the patients sue because they want answers. And I have an example of a friend of mine who went to a neurosurgeon and he did an Arnold Chiari malformation surgery on her. She had a lot of post-op complications and just kept going back to him saying I’m still in a lot of pain. I’m still in a lot of pain. She had no thoughts about suing or anything. And then one day he came into the office and he said, do not come back. The surgery is done. I don’t want you back in my office anymore. I’ll refer to you to a pain doctor.
Dr. Anthony Orsini (20m 7s):
Now it’s all in the delivery, right? Jeff. He could have said, listen, we’ll call her Jane. I’ve done everything I can for you. I wish I could help you more. But I’m going to give you to a pain doctor who I think could really help you a lot more. But his abruptness of do not come back to my office. You know, when she did, she filed the lawsuit because she was mad.
Dr. Jeffrey Segal (20m 27s):
What’s fascinating is she probably didn’t even have a case against him so what if you win, nobody wins. You just lose less. You just lose les. And I think the script you described would have been great. It could have been, look, you’ve been here several times. If I had a tool to fix you, I would do it. I want you to get better. You’re obviously not getting better. Let me tell you what I think would be a good next step. Dr. Pain doctor is the best of the best. He has helped people in situations, worse than you as to whether he can solve this problem. I don’t know, but I think it’s a great shot. Let me see if I can get you in as soon as possible.
Dr. Jeffrey Segal (21m 6s):
He’s booked four months out, but I’ll see if I can work some magic and get you in sooner. What do you think? I mean, it’s the same statement. You’re just saying it differently.
Dr. Anthony Orsini (21m 15s):
It’s all in the delivery. It drives me crazy when I teach doctors and I do the communication workshops. I’m like, it’s really not that hard. Just think before you speak and let’s say, how can I say this? That’s one of the things I teach before you open your mouth and say, how can I say this? And sooner or later, it’ll get easier for you. But what you just said right there, she would have left that office goin, he’s a great guy. And he really wanted to help me, but he couldn’t. And wasn’t that great that he got me into this really busy pain doctor a month earlier, you know?
Dr. Jeffrey Segal (21m 46s):
And let’s, let’s acknowledge the obvious here. Every doctor, a hundred percent of doctors in the country right now have a list of patients that they wish would never come back to their office every day. Now it’s just an occupational hazard. You practice long enough. There’ll be some people who rub you either. You can’t fix them. And it makes you feel a little less adequate than you’d like to feel with our delicate egos or they’re just, they, these people have no interpersonal skills or they’re angry, but every practice has them. And the worst thing that could happen is if your office staff books them back to back for an entire day, you know, and that’s all you have.
Dr. Jeffrey Segal (22m 27s):
You know, at that point, you just want to get rid of your staff. But because we all have them, the question is, how do we manage them? There are times that you must cut the cord and terminate a doctor patient relationship. But if you have to do that, do it in a way that minimizes the damage to you. I mean, if you just tell someone don’t ever call me again and you’ve not formally terminated them, they can file a complaint with the board of medicine saying you abruptly got rid of this patient without giving them 30 days notice without giving them an option to abandon your patient. Now you need to respond to us. So whatever 20 minute interval you had to spend with this patient before, you’re not going to have to spend hours.
Dr. Jeffrey Segal (23m 10s):
If not days, dealing with a board of medicine. Now, your license is at risk. It’s an unforced error.
Dr. Anthony Orsini (23m 16s):
And then as you mentioned before, about the internet, you know, it’s kind of like breaking up with a long time boyfriend or girlfriend. If you’re nice about it, there’ll be some tears. And that if you’re a real jerk about it, they’re going to go on the internet and say, boy, Tony, don’t date him. He’s a real jerk. So it’s really not much different. Is it going to start off?
Dr. Jeffrey Segal (23m 34s):
It’s not you it’s me. It’s not, you have deficient individual.
Dr. Anthony Orsini (23m 42s):
But things go wrong. And sometimes there are real medical errors. So your first chance of not getting sued for malpractice is to know how to communicate, be nice and all those other drop the mic, things that you told us to do. The second chance is now there’s a medical error and I’m a firm believer in how you reveal that medical error makes another, this is another big chance to mitigate this. And I truly believe that hospitals and some doctors do this all wrong. So give us some advice about that. And what are your beliefs about that?
Dr. Jeffrey Segal (24m 15s):
I follow the advice of Doug Wojcieszak, whose name is hard to spell and it’s even harder to pronounce, but he wrote this book called, “sorry, works”, sorry, works short book. You can read it in moments. And the principles are pretty straightforward. And he came up with his principles when his family member was on the receiving end of a bad experience at a large academic center, medical error just wasn’t handled well. It was denying, defend, deny, and defend. And he said, look, I’ll want to do is get this made right. Principles are as follows. One is as soon as you realize there’s an error, go see the patient or their family and say, you’re sorry, you’re not saying I’m liable.
Dr. Jeffrey Segal (24m 58s):
You’re just saying, you’re sorry, what does that mean? It means you’re a human and you understand that they do not like this outcome. You understand they don’t like this outcome. They’re a human. And you’re a human. You’d be surprised how powerful those two words are in the English language early in my marriage. I wish I had learned that concept. It would have saved me hours of additional issues because I remember one time saying, Hey, I’m sorry. Just okay. All better now. And I go, that’s it. That’s all I had to say, why didn’t you tell me that before?
Dr. Anthony Orsini (25m 29s):
I have a friend that I have in front of interviewed him very early on for this podcast, he’s an expert in workplace violence, FBI guy, and all that. And he said, jokingly, I wake up every morning. And I say to my wife, I’m sorry for everything I might do for the rest of the day.
Dr. Jeffrey Segal (25m 45s):
Let’s get it over with. Yeah. So the pediatrician yesterday, my wife was commenting as on blah, blah, blah, Jeff. And the pediatrician just interrupts. It says, say no more, say no more. I’m already. I already got it. He’s guilty. All right. So back to the medical error, say, you’re sorry, then number two, say you’re going to do a root cause analysis to identify what happened, what went wrong. Now it won’t fix the problem for that individual, but most people want to know that that whatever happened to them didn’t happen in vain that there’ll be lessons learned. It’s somewhat counterintuitive because when you’re on the receiving end of a problem, you would expect that you’re the only focus, but the one they want answers and you don’t have to quickly give the answer.
Dr. Jeffrey Segal (26m 30s):
You need to say, Hey, look, I’m going to look into this to identify what happened. I will report back to you within, you know, X number of hours or days in the meantime, here’s my mobile number. So you can call me with any interim questions, but I will continue and to take ownership of this. And we will communicate again, if you have questions in between, you can just call me anytime I’ll work around your schedule. So that’s number two. Then number three is to identify a plan to make it right. If you can, if there are additional surgeries to be had or additional fixes related to what was unanticipated, just define what that course looks like.
Dr. Jeffrey Segal (27m 15s):
Most people can suck it up. You know, most people just want to know that this isn’t the end, that there’s a potential plan. And that plan may be, I can’t take care of you. I need to transfer you to a different facility that has the core expertise to fix your problem. You know? And so, as an example, you may be in a rural hospital having done a gallbladder and you just bag the common bile duct, right at the, or, or the hepatic duct, right? As it’s coming out of the liver, many rural hospitals do not have the ability to handle that. Some do, but many do not. So if you’re going to send that patient to an academic center, just explain, I’m taking ownership, I’m going to find the right person.
Dr. Jeffrey Segal (27m 56s):
I’m going to keep you posted. And I’m going to follow up with you while you’re there. I will try and get information. So, you know, there’s a nice smooth hand off, and then finally, there may be things you can do to ease the discomfort. And this is a great example. We got a call from a plastic surgeon. Patient had not woken up yet. The intended procedure was a liposuction, but the patient ended up having an abdominoplasty or a tummy tuck, bigger procedure. The patient expected to be out of work for just a handful of days, but with the abdominoplasty much bigger procedure going to be out of work for a longer period of time.
Dr. Jeffrey Segal (28m 36s):
So he says, I don’t know what to do. And then she said, but she looks great and said, well, yeah, sure she does. But you did the wrong procedure. I don’t know what to do. So follow the script. As soon as the patient woke up, apologized said he was sorry, explained what happened or said he would look into it. So it wouldn’t happen again. And there were lessons learned there. And then he was able to identify that because the patient would be at home, recovering, not able to drive. Somebody needed to get Jr to school, need to get groceries in the refrigerator, he took care of that. He basically took care of that. And I said, I’ll make sure your child has a ride. I don’t know how he did it, but he did.
Dr. Jeffrey Segal (29m 16s):
And then he said, I’ll make sure you have food in the refrigerator or meals come into your house. And then he just refund her money. No relief, no questions asked. It’s refunded her money. Now that conversation was not an easy conversation. You said he did not like having it. And she did not like hearing it. But a couple of weeks later, when she came back to the office for a follow-up visit, she started to warm up and he said, six months later, she was his greatest referral source. His greatest referral source. So think about that. He did the wrong procedure on her, but she became his greatest referral source. Not so much because of how she looked.
Dr. Jeffrey Segal (29m 56s):
It’s what he did afterwards. That sealed the deal. So it’s possible,
Dr. Anthony Orsini (30m 2s):
As you said, patients understand that doctors are human beings and it’s impossible to be a perfect human being and mistakes that will happen. But as long as they know that, you’re sorry that you care that you’re not lying to them and not keeping anything from them. You know, not always, but a lot of times they will end up forgiving you and you’re not doing it. I don’t want the audience to think, you know, we’re just faking all this. So we don’t get sued. I mean, it’s just the right thing to do. Right? What your mother taught you is to say, you’re sorry. And that’s, I don’t know how we’ve gotten away from it.
Dr. Jeffrey Segal (30m 36s):
Just create them the way you want to be treated. You’ll find that once you put that in your head, it gets easier to do. Yes, of course you don’t. If it looks scripted or if it sounds inauthentic, it will be perceived as inauthentic and could potentially make it worse. But I think if you are just you and you are treating the patient as if you are a family member, I’d want to be treated by being open, honest, and transparent. And yeah. I mean, sometimes honesty could be equivalent to stating your liable. Okay. But what you’ll find is that honesty sometimes gives you a get out of jail free card. I really don’t know why some attorneys advise, don’t say anything.
Dr. Jeffrey Segal (31m 20s):
Don’t talk, do nothing, nature, abhors, a vacuum. And it gets filled in a patient’s brain. You’re going to be tagged with the worst possible news. Why not just fess up and just very gently, just give a narrative of what it is. Look, there are doctors who said, I don’t know how to tell you this, but we left a sponge in your body. We left some scissors in your body, left a drain tip in your body. These are all never events. Nobody wants to deliver that news. You won’t be the first surgeon in the country to have delivered that news. You won’t be the first doctor to say operated on the wrong level. I operated on the wrong side, but the sooner you rip that bandaid off, the better everybody’s going to feel.
Dr. Jeffrey Segal (32m 5s):
I can tell you that hiding that, or at least trying to explain it away so that you look like the hero will generally backfire. And that will be the invitation to, well, you will have won your audition to be a defendant.
Dr. Anthony Orsini (32m 21s):
Why do you think? Cause it drives me crazy. Why do you think that is medical error happens at a hospital? The doctor has to reveal that medical error and he turns around or she turns around and there we have risk management, the hospital attorney. And in some cases, even the CEO that are walking into the room. To me, that’s the worst possible thing you can do because that becomes disingenuous already. You like, I’m coming in to tell you about this medical error, but I got my boys and girls behind me to back me up too. You know, they don’t have a lawyer or an attorney representing them. Why do you think we’re not getting that? And why do you think that keeps happening?
Dr. Jeffrey Segal (32m 59s):
I think it’s just legacy. That’s the way it’s always been that denying, defend, deny, and defend. I think it gets perceived as a pylon. If you’ve got five people walking into a room for what is otherwise, it should be an intimate conversation between two people, maybe three people. I think it’s a formula for being perceived as a negative experience. You’ve got an opportunity to deliver rotton news. But on your terms, you can deliver rotten news on your terms doesn’t mean that it’s going to be received as such, but if you appear to be authentic, open, honest, transparent, most humans will accept that olive branch, not all, but most
Dr. Anthony Orsini (33m 44s):
The worst thing you can do, I believe in revealing medical errors. But you know, my father used to tell me, you have to buy tools before you need them, because once you need them, it’s too late. And so, you know, my father was a police officer, but before that he was a mechanic. And I remember I bought my first home and my father bought this massive toolbox for me. I didn’t know how to use half of this stuff, but he said, you know, you might not think you need this size screwdriver, but one day something’s gonna happen to your house. You’re going to need it. And it reminds me of what we’re trying to tell doctors. So you don’t think that you’re going to have to reveal a medical error in your coming out of medical school. And so when you have to, you don’t have the tool because you were never trained on how to discuss it.
Dr. Anthony Orsini (34m 26s):
So why can’t we just teach the doctors how to reveal the medical errors? So they already have that screwdriver when they need it.
Dr. Jeffrey Segal (34m 33s):
You definitely need them to talk. It’s I’m from Texas originally. And please don’t judge me harshly because of that. But there’s a saying in taxes that says, if you don’t have a gun or a parachute, when you need it, you’ll never need it again. But to your point point is that it’s better to plan and prepare for the inevitable medical error. Everybody will have a medical error. At some point, it is impossible to see 1 to 3000 patients a year over decades and have a perfect record doesn’t happen. And just to give this color, there was a, I think they call them CPC, Clinico, pathological correlation, or conference in the new England journal of medicine.
Dr. Jeffrey Segal (35m 18s):
There’s typically five to 10 pages of some amazingly esoteric parasitic organism that shows up at mass general, something that nobody will ever see in decades of practice. And they spend five to 10 pages talking about and how they amazingly made this wonderful diagnosis of course the patient’s now dead. And that they’re doing a pathologic examination and we should learn from it and so on and so forth. And they’re mostly esoteric. But 10 years ago, they delivered a presentation of a hand surgeon who operated on the wrong side, wanting to do the right side to the left side. And I think what was fascinating was that they described how it happened and how it, if it happened at mass general it could happen anywhere.
Dr. Jeffrey Segal (36m 5s):
And that was a take home message. Just expect that on rare occasion that, which you hope never happens, it does happen, but you’ve got tools in your toolkit to mitigate the problem. If you have no tools in your toolkit, you’ll be learning from scratch. And that’s not the time to, to be in the driver’s seat.
Dr. Anthony Orsini (36m 28s):
And there lies this seamless relationship that you and I have started because that’s what I’m all about is let’s teach every physician, every nurse, every risk manager, how to break bad news and the kindest most compassionate, effective matter and medical error is bad news. Let’s face it. It’s the same communication skills that you can be proud of when you’re breaking medical errors. When you’re doing conflict resolution at the risk of sounding like I’m crazy. And I need a psychiatrist, I actually enjoy the difficult patients sometimes because I love the, the lessons that I was taught and the techniques that I learned on how to de-escalate conflict.
Dr. Anthony Orsini (37m 9s):
I’m very proud of. And can I always do it? No, but when I walk into the hospital and the charge nurse is waiting for me to say, oh good, you’re working today because this mother is really causing problems. I go, Hey, this is a challenge. Let me see what I can do. And then I come out and the nurse goes well, is she mad? I’m like, no, she and I are best friends. She goes, I knew it. I knew that was going to happen. I like, you know,
Dr. Jeffrey Segal (37m 31s):
Challenge and people like to do what they’re good at people. I could do what they’re good at. And if you’re able to de-escalate conflict, I mean, how can it not feel good to de-escalate a conflict and remember delivering bad news, isn’t always you causing the bad news. You leaving a sponge or leaving the scissors in the patient. Often It’s because the patient has a bad problem. The head went through the windshield. You know, you were not driving the car, but you’re the person on call that has to deliver the news. Now, what are you supposed to do? Deliver information or deliver a feeling. And after the first sentence that you get out in that type of situation, I don’t know that they will in their brain.
Dr. Jeffrey Segal (38m 14s):
Remember what you said precisely, but they will definitely remember how you made them feel. And they’ll remember that for decades. They’ll remember the emotional valence. Was it positive? Was it negative? There’s definitely a time and a place to go through the details of what happened and do a debriefing. But the initial conversation is really how do you just take the fire out? How do you comfort someone? And remember we’re healers. So the job isn’t done when somebody passes, there’s still a family that benefit from healing.
Dr. Anthony Orsini (38m 54s):
And doctors are human beings. Not only makes them imperfect, but we take it personally too. No one wants to make a medical error. There’s no doctor who wants to hurt somebody. And I think if that comes off, that will certainly mitigate the whole process also. But as we’re running out of time, so now let’s move forward. Jeff’s too, I’m a physician. I just got sued. I did my best. I went in there and I did all those drop the mic advice that you gave me. I was great. I was, but there’s just no way around this. As you said, it’s a really bad, I get sued. What advice do you have for those that, that doctor now that he, he just got served,
Dr. Jeffrey Segal (39m 35s):
Take a deep breath, stop, take a deep breath. You are now a member of a large club. The first thing that you all think about before you take that deep breath is that you are so alone, but you’re nearly not alone. You’re a member of a big club. I joined it. Most people will eventually join it. It’s not the end of the world. It’s not a career ender. It’s not humiliating. It’s not embarrassing for most people. The next step is what are the facts, you know, try and figure out what happened. You’ll need to notify your carrier and hopefully identify a fairly talented defense lawyer. You need to educate that lawyer as good as that lawyer is, they will never know as much as you about the situation you were taking care of.
Dr. Jeffrey Segal (40m 21s):
And that means guiding and plain speak that attorney with what happened. So you got to get the record. You need to go through it and recognize that not every record is perfect. Most records are not perfect. Again, not a showstopper, not the end of the world, just be patient. In this case, the plaintiff has the burden. Not you. You don’t have the burden to defend yourself. You’re not guilty until proven otherwise. You are actually innocent. You’re not liable. They have the burden of demonstrating that there was a doctor patient relationship, that there was a standard of care that you needed to follow and that you breached that standard of care.
Dr. Jeffrey Segal (41m 2s):
And that breach caused injury. It’s an uphill battle. They’ll need to get experts to back up their version of standard of care and causation. These are legal details. We won’t bore ourselves with. Now, my point is that take a deep breath. You’re part of a big club right now, and you need to be the best possible educator and partner for your attorney. And just remember most doctors win most doctors win, when they’re sued, when now there are times when you have made an error and it’s obvious, and your lawyer may come back and tell you, Hey, I think we should settle this case.
Dr. Jeffrey Segal (41m 42s):
And if that’s true, then we should talk about, and that we do this record with doctors, how to mitigate the damage. How can you do it in such a way that it has minimal, if any impact on your license, on your online reputation, on your hospital privileges and the payout. You know, if you make a payout for a million dollars policy limits, it will be perceived differently than if it’s a a hundred thousand dollars payout. It will be perceived differently from your carer perspective and underwriting, whether you’re perceived as a good risk and whether you’ll get preferred rates going forward. So a lot to think about, but doing that with a strategic partner like us that have been around here a bit around this block for some time we’re physicians and lawyers.
Dr. Jeffrey Segal (42m 29s):
And so we understand both both spaces pretty well.
Dr. Anthony Orsini (42m 33s):
So at what point do they contact you? Are they always stuck with the hospital attorney? Or can they call up Jeff and say, Jeff, I need you also, what how’s that work?
Dr. Jeffrey Segal (42m 40s):
Yeah. So we can sometimes act as personal counsel, which means we’re looking after your interest and that’s often different than that supplied by the hospital or your carrier. The way I like to think of this as somewhat, typically an attorney should be working for you. Your attorney should work for you, but you can certainly imagine a conflict where if it’s a hospital supplied attorney and there’s a common defense between you and five other people and the hospital, they have to split their brain and their focused among five different defendants and the hospital too. It’s hard for them to be your perfect advocate when there are other defendants.
Dr. Jeffrey Segal (43m 23s):
So we help doctors think through what does that mean? How can you get the best out of this relationship so that, you know, you’re not a sacrificial lamb, we’ve certainly seen it where you have five defendants, for example. And one of the doctors decides to leave and moves across the country to start over. But everybody’s sharing a common defense from this legacy lawsuit, who do you, think’s going to be that sacrificial lamb, you know, the income generators who still remain at the hospital or you, the guy that decided to go from California to Pennsylvania and start your own career. Of course it’ll be you, but how do you minimize that problem?
Dr. Jeffrey Segal (44m 3s):
And that’s where we help you think through strategies.
Dr. Anthony Orsini (44m 5s):
I think that would be very valuable if someone’s getting sued and they feel that they need someone in their corner just to contact you. And we’re going to leave all your contact information for everyone out there in the show notes. One final question, Jeff, that I ask every guest, it’s kind of like my thing at the end. I don’t know if I warned you about this question or not. Maybe I did. Maybe I didn’t, but some people have a hard time with it, but I’m going to ask it anyway. What is the most difficult conversation or type of conversation that you’ve ever had in your life? And can you give us advice on how you navigated through that conversation?
Dr. Jeffrey Segal (44m 42s):
So I’ll use the same situation with two different conversations that were had. So my son, when we first got his diagnosis, I think that the doctor was entirely insensitive to our situation. This was a shock primarily because he was developing normally and then regressed. He wasn’t even born with that, but since he was tracking his twin sister who was neuro-typical and then ultimately regressed and to this day, and we’re talking 24 years later, my wife’s, well, actually was 21 years after that conversation, my wife still remembers that conversation as a negative conversation.
Dr. Jeffrey Segal (45m 22s):
Okay. Next, my son had two craniotomies for epilepsy, university of Nebraska when he was six. In contrast to that initial conversation, that surgeon could not have been more empathetic, more human, more communicative, and helpful. He was certainly a talented practitioner, but no less important. He was a dedicated human being. He was someone that gave us his mobile number. In fact, this is actually really important. And I learned quite a bit about this process, each case, because there was a lot of mapping. There’s a lot of what’s white and white during the operation, while they’re just trying to map the electrical signals of the brain.
Dr. Jeffrey Segal (46m 8s):
And they were diligent about having the nurses, communicate with us and say, Hey, look, we’re just thinking about you. We know you’re out there. Everything is going well. Everything’s going well now in contrast, when I was a surgeon and that was before would frequently get messages from the nurse, a doctor, the families out there, what do you want me to tell them? And you know, it’s a long case. And while we would say, Hey, look, everything has gone. Okay. My internal sarcastic brain was thinking, so if I’m shoulder deep in blood, should we communicate that? Having a hard time swimming? But what I learned by being on the receiving end of a gentle empathetic surgeon with my son was that the message is really little more than this.
Dr. Jeffrey Segal (46m 54s):
We’re thinking about you. And you know, there’s no amazing crisis going on and that’s it. We know you’re out there in the waiting room and where here, we just want you to know we’re doing the best we can to take care of your son, but we know you’re still there. And you’re part of the team
Dr. Anthony Orsini (47m 12s):
And that your son is as part of a family. It’s and your son’s not just the patient. We understand that your son is a son to people. And that goes again, the main theme of my book, it’s hard to fire your best friends. So you felt that you had representation in there from someone who knew that it wasn’t just patient or another operation. So that’s great advice. And you hit on the head.
Dr. Jeffrey Segal (47m 36s):
Front. You would be asking me that question. You didn’t communicate upfront.
Dr. Anthony Orsini (47m 40s):
I was a bad communicator. The last two that I did, I forgot to tell them, I guess, as I get more and more of these podcasts episodes, I’m getting a little sloppy. So I’ll have to start warning my people, but maybe it’s better that I don’t tell you it isn’t
Dr. Jeffrey Segal (47m 53s):
Bad, or just get it from the hip.
Dr. Anthony Orsini (47m 55s):
Jeff, thanks so much for the time that you spent with us, what you do is fascinating. It’s really needed. I have a, most of my audience, I would say about 75% is in the health care. Many of them are doctors and nurses, malpractice, medical errors, communication, medical, justice, all this stuff is so important. It all leads into another topic that we don’t have time to talk about professional burnout and job satisfaction and all that stuff. But to know that there is someone like you out there that I can call when I go into this pure panic, that when that subpoena comes and is I think very comforting. So the best way for people to get in touch with you, I’ll put this all in the show notes, but how can people get in touch with you?
Dr. Jeffrey Segal (48m 34s):
Our website, www.medicaljustice.com, medical justice.com. And by the way, on that homepage, there’s a way to click for a free confidential consultation. All you’ve got to do is select two dates and times, and we’ll say, let’s make it happen. And you get a free consultation. So easy peasy,
Dr. Anthony Orsini (48m 57s):
Fantastic. And to make the lawyers happy. I forgot to say this in the beginning that the views of the interviewer and the guests are their own and not necessarily the views and beliefs of the institutions and the companies that they work for. So there’s a, that’ll make the attorneys happy. Jeff, thanks so much again, if you liked this episode, please go ahead and subscribe apple now, cause it follow instead of subscribe and download all the previous episodes. If you need to get in touch with me, you can get in touch with me through my website The Orsini Way.com again. Thank you, Jeff. And I hope that you and I will be having many more conversations.
Dr. Jeffrey Segal (49m 36s):
As do I.
Dr. Anthony Orsini (49m 36s):
I want to thank you for listening to this episode of Difficult Conversations: Lessons I learned as an ICU physician, and I want to thank the Finley Project for being such an amazing organization. Please, everyone who’s listening to this episode, go ahead, visit the Finley Project.org. See the amazing things they’re doing. I’ve seen this organization literally saved the lives of mothers who lost infants. So to find out more, go to the Finley Project.org. Thank you. And I will see you again on Tuesday.
Announcer (50m 5s):
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Dr. Anthony Orsini
Jeffrey Segal, MD, JD
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