Doctors and Litigation: The L Word

Welcome to Season 3 of Doctors and Litigation: The L Word! We start off with an update on the LEAP Course (Litigation Education and Performance) -- sign up from now through December 1, 2025 with coupon code LEAP100 and get $100 off. Now with up to 16 hours of Category 1 AMA CME Credits! https://www.doctorsandlitigation.com/LEAP/signup Our first conversation in Season 3 is with Dr. Anthony Orsini of The Orsini Way. Communication with patients or families after unexpected medical events is crucial, but most of us have no formal training in how to do it well. Compassionate and skilled conversations can pave the way for understanding and closure for families. However, when handled poorly or defensively, these conversations can create resentment, distrust, and anger, which can also make litigation more likely. What do patients and families want from us in these moments? What do we do with our body language? What happens if we cry? Can we show compassion by touch, on the hand or the shoulder? Why is this so difficult? Have we lost our humanity in the name of professionalism? Dr. Orsini has spent the last 25 years developing proven communication techniques that help doctors build rapport and quickly form trusting relationships with their patients. Come along as we discuss evidence based strategies to handling these conversations better.

In this episode (the last of Season Two), Dr. Pensa sits down to speak with a plaintiff's attorney. However, her guest, Chad Englehardt, is not your average plaintiff's attorney. Chad is a highly lauded attorney, law professor, and advocate of Rick Boothman's Michigan Model (for more on that, listen to Episode 13 of Season Two.) We talk extensively about CRP (Communication - Resolution) programs, patient safety, and the dysfunction of our current legal system, which re-traumatizes patients and clinicians alike. If the first rule of medicine is 'First, do no harm,' then he feels the second rule in medicine, and the first in law, should be: "Do no further harm." We also talk a bit about third party investors and litigation funding (which we have not yet covered in the podcast, but is of great importance...we'll revisit it!) During the course of our conversation, Mr. Englehardt mentions two books: You can reach Chad via email at chad@cmtjustice.com. We'll be back in a few months with the start of Season Three!

Following up after episode 15, "What to Know When the Government Comes Knocking," Dr. Pensa interviews a physician who went up against the US Department of Justice -- and won. Dr. Muhamad Aly Rifai is a practicing psychiatrist, boarded in psychiatry and internal medicine, who was indicted on charges of healthcare fraud by the US government in 2022, following seven years of investigation. Dr. Rifai was confident he was innocent, and confident in his billing practices -- and despite intimidation by the government, threats of imprisonment for up to 40 years, and very long odds, he refused to settle. He won against the US Government after a 6-day trial, and is here to share what he learned in his ordeal. This Department of Justice press release describes the accusations against Dr. Rifai. (I feel they should update the headline!) After demonstrating that the case was baseless and should never have been brought to trial in the first place, along with his resounding victory in court, Dr. Rifai filed a motion for sanctions and to recoup his substantial legal fees. In the wake of that motion, one prosecuting attorney was fired, and two others have 'retired.' The motion, as of May 2025, is still in limbo. Dr. Rifai shares his story in an effort to educate all of us, and to empower physicians going through similar circumstances.

The Department of Justice is waging a war on healthcare fraud, and sometimes even well-meaning doctors can get swept up in it. Today's interview with healthcare law attorney Anthony Box will shed some light on this high stakes topic. Tony Box has extensive experience not only in defending doctors against government allegations -- but he also previously investigated and prosecuted these cases as a federal prosecutor and FBI agent. He knows both sides of this coin very well. Host Dr. Gita Pensa and Attorney Box break down the basics of what every doctor needs to know about governmental investigations and litigation.

When an insurance company is accused of acting in bad faith, it's alleged that they failed to act fairly and reasonably in handling a claim -- often related to not agreeing to a reasonable settlement when the financial risk to the insured at trial was known to be substantial. In this episode, host Dr. Gita Pensa talks with Florida attorney Dale Swope about his decades of experience with bad faith lawsuits. Mr. Swope emphasizes that some liability insurers are more reliable and fair-minded than others, so it’s important to consider an insurer’s reputation. Just as an adverse medical event doesn’t always mean malpractice, an unfavorable legal outcome doesn’t automatically mean the insurer acted in bad faith. However, insurers do have obligations to their policyholders—and if those obligations aren’t met and there’s a negative legal outcome, it can lay the groundwork for a bad faith lawsuit. Mr. Swope also makes starkly clear the importance of knowing who you're really working for when you're working for a mega-group. (You'll want to check the name on your W-2 immediately.) Dale Swope is managing partner of Swope, Rodante P.A. which is the development of the solo firm practice he founded six months out of law school, in 1979. In his more than thirty years of service as a Board-Certified Civil Trial Specialist, and previously a Board-Certified Business Litigation Specialist, Mr. Swope has won many awards, and holds a reputation as one of the preeminent attorneys practicing in Florida in the area of insurance bad faith.

If you’ve ever felt frustrated by the fear-driven legal landscape of medicine, this conversation will change the way you think about liability and the future of patient safety. In this episode, Dr. Pensa sits down with trailblazer Richard Boothman, JD, a pioneer in patient safety and transparency, to discuss how the traditional "deny and defend" approach has failed both doctors and patients. We discuss the "Michigan Model," how it came to be, how it works, and how new CMS and ACGME changes may make it our new normal. Stick around to the end, because Rick's got a story about this model in action that rivals any closing arguments. Mentioned: A World of Hurt: How Medical Malpractice Fails Everyone And sign up here for the first-of-its-kind LEAP: Litigation Education and Performance program for clinicians with Dr. Pensa. The course starts March 17 and registration ends on March 10, 2025!

The first LEAP (Litigation Education and Performance) Course for Clinicians will run from March 17th through June 2nd, 2025. This is a hybrid online course, 1 h/week self paced videos and 6 live virtual review and Q&A sessions with Dr. Pensa, one of which will be an Ask-a-Lawyer segment with a seasoned defense attorney. These live sessions are spaced every other week, at varying times, and will be recorded if you can't make a session. This is for anyone -- doctors, nurses, APPs, dentists -- any healthcare provider who wants to understand the litigation process, and how they can navigate it with skill and resilience. We'll cover from getting named all the way to jury verdict, and all the possible stops in between -- along with many of the coaching techniques for performance Dr. Pensa uses with her 1:1 clients. *The course is eligible for CME and CNE credits, so use those professional funds for something really useful!* Check out the course here at https://www.doctorsandlitigation.com/LEAP/signup Please share with anyone you feel could benefit from learning about what we were never taught in training about medical litigation!

In this episode we have a conversation with surgeon and longtime expert witness Dr. Stephen Cohen, who wants to tell you about common mistakes he's seen physician defendants make in their cases. Dr. Pensa and Dr. Cohen discuss real cases Dr. Cohen participated in as an expert, and their legal outcomes. We also emphasize the unfortunate reality that we (and licensing boards, and society)should not use adverse jury verdicts and legal outcomes alone to infer whether someone's medical care was reasonable. Learn more about Dr. Pensa at doctorsandlitigation.com.

Dr. Pensa explains why attention to your thinking, even when you feel your mental health is "good", can lead to personal growth and a more satisfying life. We all know the markers of excellent physical health, but what are the components of excellent mental health? Is it simply being happy all the time? Is that even possible? (Spoiler: it's not.) Using functional fitness for the body as an analogy, we look at the importance of not waiting until your health is poor before making efforts to improve or optimize. Strength, endurance, flexibility, agility, speed, and balance are facets of both functional physical health as well as your mental health and thought processes that can be developed and strengthened over time with intentional practice. A person adept in all of these spheres can become more adaptable to life's inevitable challenges, and just like in physical health, learning to lean into resistance and some discomfort in lower-stakes situations will increase your capacity over time. The concepts of thought work and emotional agility are introduced. Mentioned resource: Susan David's Emotional Agility

Many of us have no idea who our medical malpractice insurance carrier is, let alone the details in our policy. But this ignorance can have huge consequences when it's time to face a claim, and it's better to go into that challenge with your eyes wide open. On this podcast, Dr. Pensa speaks with John Shufeldt, MD, JD, MBA about things that every doctor or other patient-facing clinician should know about their insurance coverage, which can vary tremendously from policy to policy, and from insurance company to insurance company. So before you take a new job, or before you face a claim: have a listen, and learn about the questions you've got to ask.

Physicians and other clinician defendants whose cases go to trial (roughly 8-10% of malpractice cases) usually have little understanding of the legal events and strategies involved, which naturally amplifies their anxiety. Today on the podcast, we'll continue to address these knowledge deficits. Decisions made about how cases proceed are usually made by considering how the 'optics' of a given case will look to a hypothetical jury -- but when trial begins, at jury selection and the voir dire, that once-hypothetical jury will be come real flesh and blood laypeople, who have their own ideas, perspectives, biases, likes and dislikes. And they will decide how this long legal saga ends and which side prevails (barring any appeals, which unfortunately Dr. Pensa is very familiar with.) In this podcast, we talk to Shari Belitz, Esq., a trial and jury consultant, about the importance of jury selection and the strategies involved. Ms. Belitz is the CEO and Owner of Shari Belitz Communications. She is a seasoned attorney who then trained in forensic psychology before launching her career as a trial consultant and strategist. We talk about why the jury is all-important in case outcomes, the strategies attorneys can deploy during the voir dire to try to select jurors who may be more inclined to side with their case, how attorneys can expose bias and strike jurors for cause, and the utility of mock juries and focus groups. If you haven't listened to the Season One episode on Trial and Settlement, start there first. You can learn more about host Dr. Pensa here.

In this episode, Dr. Pensa discusses 'strategic communication' in litigation with expert Matt Abrahams. Matt teaches strategic communication at Stanford Graduate School of Business and hosts the podcast, "Think Fast, Talk Smart." He's also the author of the books "Think Faster, Talk Smarter" and "Speaking Out Without Freaking Out: 50 Techniques for Confident, Calm and Competent Presenting." We talk about the importance of communicating strategically in any setting, including the artificial settings of deposition and trial. We discuss, among other things, anxiety management, the importance of preparation and structure, and communicating with empathy, clarity, and brevity. More about Dr. Pensa and how to contact her: https://doctorsandlitigation.com/

"A World of Hurt: How Medical Malpractice Fails Everyone" is a new documentary produced by Emmy-nominated physician-filmmaker Dr. Mark Brady and two medical students, Alex Homer and Viknesh Kasthuri. After a year of private screenings and film festivals, this powerful piece was recently picked up by PBS after winning multiple awards. It is now free to watch online (links below). In under 27 minutes, this short documentary tells three stories: a plaintiff whose sister dies after a medical error; a physician whose life is decimated by a malpractice allegation; and a couple whose baby dies in the hospital, but seeks a non-traditional route for closure. Dr. Pensa, who appears in the film, turns the tables and interviews the filmmakers in today's podcast. They discuss what it was like making the film during COVID, the difficulty of getting subjects to agree to filming, and how they hope this piece can be an agent for conversation and change. Please watch the film and share widely. It is short, but powerful. Watch now: PBS: https://watch.ripbs.org/video/a-world-of-hurt-how-medical-malpractice-fails-everyone-uklpuo/ YouTube: https://www.youtube.com/watch?v=09IVcL6pACU You can find Dr. Pensa at doctorsandlitigation.com

The phrase "nuclear verdict" strikes fear into the heart of any defendant - and today we're going to tackle it head on. We welcome Dusty Otwell, JD, medical malpractice defense attorney and Chief Risk Officer of UCACS, to the podcast to discuss “nuclear," "runaway jury," or aberration verdicts. These are jury awards to the plaintiff, given at trial, that well exceed predictions. They tend to make headlines, create fear among doctors and other providers, and lead other parties to dream of giant jackpots. In this episode we discuss: More about host Gita Pensa, MD, can be found at https://doctorsandlitigation.com/ Dusty Otwell is vice president for claims and risk management at US Acute Care Solutions. He also serves as Chief Operating Officer and Corporate Secretary for Clinician Assurance Risk Retention Group, the self-insurance carrier for USACS. Previously, he was associate general counsel and director of risk management for Emergency Service Partners, a founding partner of USACS; a senior risk management consultant for ProAssurance Corporation, staff attorney for Maynard, Cooper & Gale, P.C., and staff counsel for Medical Reimbursements of America, LLC.

There is a wealth of research to support a positive effect of mindfulness on the mental health and overall well being of physicians and other clinicians. This is well documented in spheres like burnout, job satisfaction, and overall well being (sample references below). Today on the podcast we introduce mindfulness as a cognitive tool that can be useful in litigation preparation as well. Today's guest, Douglas Morgan, is a seasoned medical malpractice defense attorney who incorporates the teaching of mindfulness into his work with clinician defendants. Resources mentioned: Jon Kabat-ZinnThich Nhat Hanh References:

Medical Boards (or state Departments of Licensure and Discipline) are charged with keeping the public safe from unskilled, impaired, or unscrupulous doctors (or other licensed clinicians, each of which has their own board). While this is an important and necessary role, it is also not uncommon for well-meaning or "innocent" doctors to become the subject of investigations due to complaints from patients, other doctors (including competitors), or from the Board itself. Malpractice litigation or adverse event reporting may also trigger Board investigations as well. This process is usually opaque, and clinicians have a poor understanding of how their Board works, who is on it, how those people are appointed, who they answer to, what happens when complaints are investigated, the possible ramifications of board decisions, and how to best prepare themselves in the case of a complaint. A naive physician can unwittingly worsen their situation, and an attorney is usually recommended to help in navigating the process. Depending on the complaint, your malpractice policy may help defray the cost of this. Important points to note: processes for Boards differ from state to state. Typically anyone can lodge a complaint against a physician with the Board, for nearly any reason, and every complaint needs to be addressed in some way. These complaints can be anonymous in some states, and can range from serious to trivial. There is generally no statute of limitations for these complaints. Consider this podcast an invitation to learn more details about your state's medical board and their processes. Board investigations and evaluations have been linked to physician suicide, and Dr. Pensa cites a study from 2014 in which nearly 5% of physicians referred to the Tennessee medical board for fitness-for-duty evaluations either seriously attempted or completed suicide. She also mentions a John Oliver 'Last Week Tonight' episode about state medical boards that paints a bleak picture of state medical boards' ability to root out dangerous doctors. The job of the medical board is indeed a difficult one, and Dr. Pensa makes the case for more transparency, accountability, and feedback mechanisms given their power and the wide-reaching impact of their decisions. Changes would need to be made at a legislative level, as the Board is typically a governmental/political organization. Dr. Gita Pensa gives an introduction to Medical Board investigations and complaints in this episode with Guillermo Beades, Esq. Mr. Beades teaches and publishes regularly in an effort to educate physicians and other clinicians about healthcare law. You can find an article of his about this topic here in Medical Economics. Guillermo J. Beades, Esq., is a Partner in Frier Levitt’s Healthcare Litigation Department and Co-Chairs the Firm’s Insurance Defense Group. He represents healthcare professionals in a broad range of administrative, civil and criminal healthcare matters. Mr. Beades has extensive litigation experience before state licensing authorities and Medical Boards (e.g., NJ BME, OPMC), federal healthcare agencies (e.g., OIG, CMS, DEA) and state healthcare agencies (e.g., NJ Medicaid Fraud Division, NY OMIG). He represents practices and healthcare professionals in matters concerning credentialing and denial of privileges, administrative discipline, Medicare audits, hospital fair hearings, post-payment demands and pre-payment audits.

This month, we're exploring the topic of 'help-resistance' in physicians. Why do we acknowledge the need to maintain and optimize the health of our bodies, but scoff at doing the same for our minds or mental well-being? Why do support programs flounder from lack of participation? Why is the notion of even 'self-help' so foreign and...icky? In this 'listicast', Dr. Pensa explores the top ten(ish) reasons for help-resistance in physicians. This has practical implications as to why physicians often do not access support programs, and why they may resist external or even self-help instruction. These concepts are each briefly explored, with particular focus on the physician experience (though, of course, other clinicians and high achieving professionals may have similar experiences.) Ten Reasons Behind 'Help-Resistance' in the Physician 1) Internal core beliefs and identity of the physician (and traits including exceptionalism and perfectionism) 2) External collective beliefs and medical culture 3) Inability to recognize when help is indicated (or avoidance coping) 4) Lack of awareness of various modalities of 'help' (what does 'help' even mean?) 5) Family of origin (or culture of origin) taboos; expectations of the family high achiever 6) Absent help infrastructure (or a hush-hush help infrastructure) 7) Terminal uniqueness 8) Fear (of discovery, judgment, licensure/discipline threats)* 9) Friction 10) Change resistance and inflexible thinking (or dichotomous thinking) *To learn more about Dr. Lorna Breen, the Dr. Lorna Breen Heroes Foundation, and their work addressing the origins of this fear, go to https://drlornabreen.org/ More about Dr. Pensa: https://doctorsandlitigation.com/about-gita-pensa Disclaimer: Dr. Pensa is not a therapist or psychiatrist, and this discussion is not meant as treatment for any specific mental health disorder. This list is based on Dr. Pensa's personal and professional experience, and her coaching work with other physicians in the realm of litigation stress and burnout.

In this first episode of Season 2, Dr. Pensa talks with attorney Saira Pasha, an EMR audit trail expert. What else besides the words in your chart does your electronic medical record track? Are 'secure messages' discoverable? (Spoiler: yes, they can be!) How can an audit trail help your case -- or hurt it? How does an audit trail expert 'read between the lines' of who's looking at what entries in the record, and when, and for how long? Take home points: Dr. Pensa references this 2021 case in which efforts to alter EMR records were exposed. More about Dr. Pensa and how to contact her can be found at doctorsandlitigation.com.

Dr. Pensa tells the story of her own life after litigation in an interview with Dr. Mel Herbert. This is the last episode of Season One. But follow along -- a new season is in the works! We'll talk about topics at the intersection of litigation, coaching, risk, and medicine -- and how to stay human through all of it.

Although you might expect life to go back to 'normal' as soon as the litigation process is complete, it often doesn't work that way. Lingering distress, if left unaddressed, can lead to behaviors like over-documenting or over-testing, avoidance of certain procedures or case types, PTSD symptoms, disillusionment, burnout, and career abandonment. In part one of 'Life After Litigation', Dr. Gita Pensa speaks with Tracy Sanson MD, Stacia Dearmin MD, and Marge Paccione, PhD, about their insights.