Dr. Pensa successfully defended a multi-million dollar malpractice case spanning twelve years, including two jury trials. She speaks nationally on the topic of litigation and litigation stress, and has been a practicing physician for nearly 20 years. She is currently academic faculty at the Alpert Medical School of Brown University. However, these opinions are her own, and this podcast does not express the views of Brown University, her employers, or any affiliated hospital systems.   

More about Dr. Pensa: doctorsandlitigation.com

Also available here on Apple podcasts.

Theme music by BenJamin Banger (Instagram: @BenJaminBanger)

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Check out Dr. Pensa's recent appearance on The Pitt Podcast -- the HBO Max companion podcast to the Emmy-winning hit show, The Pitt!

Gita Pensa was thrilled to be a consultant for the hit drama The Pitt for the 2nd and (upcoming) 3rd seasons, bringing her expertise in malpractice litigation stress to help the show's writers understand what clinicians carry behind the scenes. She speaks about it more in Episode 10 of the HBO Max companion podcast.

Watch here now:

https://youtu.be/phwbzDMCuUc?si=DUymrA6dE9xYYVx_&t=2070

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Take the LEAP! Be litigation-ready.

Learn from Dr. Pensa's attorney-vetted Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced video course that will teach you about the skills and mindset required to face medical litigation with integrity and know how. Learn many of the techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/LEAP/signup

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Attorneys, Risk, Claims, and Medical Leadership: Learn about "Defense LEAP" and partnering with Dr. Pensa to ensure your medical defendants are supported and prepared from the very beginning. Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

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WATCH: The Emmy-nominated 30-minute documentary, "A World of Hurt: How Medical Malpractice Fails Everyone," featuring host Dr. Pensa. 

PBS: https://watch.ripbs.org/video/a-world-of-hurt-how-medical-malpractice-fails-everyone-uklpuo/

YouTube: https://www.youtube.com/watch?v=09IVcL6pACU

More about author Dr. Pensa: doctorsandlitigation.com

Topics discussed:

• The emotional impact of the first steps into litigation (and the intended effect from the plaintiff's attorneys), as well as some advice on how to frame it in your mind
• First action basics: contacting your insurance carrier, and finding an attorney to represent you
• Board of Licensure/Department of Health investigations that begin automatically in some states when litigation starts
• The beginnings of the 'discovery' process
• Who to talk to...and who not to talk to
• Do's and definite don'ts in the first stages

Resources mentioned:

"How to Survive a Medical Malpractice Lawsuit", by Ilene Brenner MD

"Adverse Events, Stress and Litigation: A Physician's Guide", by Sara Charles, MD and Paul Frisch, JD

Litigation stress website with free resources: www.physicianlitigationstress.org (founded by Dr. Sara Charles; note host Gita Pensa MD serves on the voluntary advisory board)

Dr. Louise Andrew, MD JD: www.mdmentor.com

Theme music by BenJamin Banger (Instagram: @BenJaminBanger)

More about author Dr. Pensa: doctorsandlitigation.com

If you are in crisis, the National Suicide Prevention Hotline at 1-800-273-8255 is there for everyone -- even healers. 

More about Dr. Pensa: doctorsandlitigation.com

Follow hashtags #NPSADay, #DocsTalkSuicide, and for general suicide prevention, #BeTheOne or #BeTheOneTo. 

The fifth regular episode on the deposition will be out later this month. 

More about Dr. Pensa: doctorsandlitigation.com

PRIOR TO DEPOSITION: In addition to obtaining books and discussing with your attorney, you may find these points helpful. This is not comprehensive, but it's a start.

1) Study your chart well, and any other documents provided to you by your attorney.  2) Discuss whether to do any research about the medicine in question with your attorney -- there are pros and cons to this. 3) Know the weak spots in your case and your charting, and how you will articulate your thoughts about them 4) Practice answering difficult questions in a direct and succinct manner, avoiding providing extraneous information. 5) Discuss with your attorney how to handle questions about co-defendants. In general, avoid finger-pointing. 6) Know your 'arrows' and when to fire them (i.e., if you have a 'slam dunk' in your defense)--this is the exception to the 'don't explain too much' strategy. Your attorney will help you identify these points and how to get them into your testimony. 7) Plan for the day itself: make sure you're not on call or post-overnight, know what sharp, professional outfit you will be wearing, know where to be and when -- and plan something fun and relaxing that evening to decompress after it's done. 

DURING DEPOSITION: 1) Pay attention to your attorney during the process -- they are with you for a reason. 2) Take your time answering questions; pause before speaking. 3) Do not answer any question until the question is complete. Do not interrupt or speak to fill in an awkward pause. 4) If a question has multiple parts or is confusing, ask the questioning attorney to break it down or rephrase it. Do not answer questions unless you know exactly what the question is. If the question seems out of 'left field' avoid over-explaining why it seems to be so. If you cannot answer the question as it's asked, say so and ask them to rephrase it. 5) Be aware of verbal traps such as double negatives, hypotheticals, overly vague questions or generalizations, or questions posed after a long series of statements or data. 6) If you don't remember or don't know, just say you don't remember or you don't know. Don't guess, and don't say anything you only 'think' you remember. Stick to what you're sure of. 7) Do not agree to calling any text, journal or article "authoritative". It's not. 8) You should look at hard copies of the chart or labs when asked direct questions about them -- but then stop flipping through the chart and pay attention to the next question. Do not direct their attention to any other parts of the chart or try to educate them. 9) Take a break whenever you need one. Refresh, recharge, and speak with your attorney in private. It's a long day. 10) When it ends, get far away from the building and into a safe space before you talk to your attorney about what went on in there. You never know who's listening, and anything they observe is fair game, even if it's not in the transcript.

More about Dr. Pensa can be found at www.doctorsandlitigation.com. 

Louise Andrew MD JD, Greg Henry MD, and Jeff Segal MD JD add their expertise. 

More about Dr. Pensa can be found at doctorsandlitigation.com.

Litigation often has a spillover effect on spouses/partners and families, whether or not the defendant physician acknowledges it. In this episode, I interview Dr. Claire Nicogossian, PsyD, a psychologist and clinical instructor in the Department of Psychiatry and Human Behavior at Brown University (www.MomsWellBeing.com) We discuss common struggles that couples and families face during litigation, how to stay connected and communicative, and how to speak with children about litigation. Dr. Nicogossian describes some of the Gottman Institute's longitudinal research on couples, including the 'Four Horsemen of the Apocalypse' in relationships that predict divorce/relationship failure (Criticism, Contempt, Stonewalling, and Defensiveness). She offers some practical advice, reassurance, and insight. Drs. Paccione, Andrew, and Henry, introduced in previous episodes, continue to offer their added insights.

More about Dr. Pensa can be found at doctorsandlitigation.com. 

If you're definitely headed to trial, how do you prepare -- practically and psychologically? And what can happen if there's a verdict against you and a judgment that exceeds your policy limits?

We'll be hearing from two defense attorneys, Dr. William Sullivan (a practicing physician and attorney, who has been a defendant himself) as well as Douglas Williams, Esq, a medical malpractice defense attorney in Baton Rouge, LA, with over 30 years of experience. We'll also hear the story of one physician's case as it progresses from medical encounter all the way to trial. 

More about Dr. Pensa and her work can be found at doctorsandlitigation.com

In this episode, Dr Pensa speaks with two malpractice defense attorneys about some general principles, and gets some reassurance. 

Some states are adopting emergency measures that provide practitioners with additional protection, changing the standard for civil cases to 'gross negligence or willful misconduct'. But this does not mean the provider has blanket immunity from being sued at all. Lawsuits might still be filed that will need to be defended, even with this new standard (though likely fewer cases will be brought forth, because they will be much harder for plaintiffs to prevail). Because lawsuits can still be filed, and there are large costs associated with defending them from the start, it is imperative that you are properly insured for however your practice changes in this pandemic. We discuss considerations for retirees and volunteers, physicians who are changing the manner in which they see patients, and the importance of documenting circumstances in general.

More about Dr. Pensa: doctorsandlitigation.com

Attorney Calvert has specialized in medical malpractice defense for over thirty years, and brings a nuanced perspective to a case which has rocked the medical world since the verdict in March 2022. Some of the questions we discuss:

• Will we see more criminalization of adverse events and medical error after this trial?
• Will malpractice insurance cover the costs of a criminal defense?
• What is the institutions's role in this error, and why are they not bearing more responsibility?
• What might happen to safety culture and the self-disclosure of error in the wake of this verdict?
• What lessons should we take away from this terrible and tragic event?

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. 

Take home points: 

• The EMR creates a trail that tracks not only your substantive words on the chart, but evidence of all the people who were in a given chart, at what time, looking at what, for how many seconds or minutes, what they did next in the chart, whether a template or smart phrase was deployed. It tracks and times views, edits, additions, deletions, changes, and any printing or searches. These are not part of the initial requested 'medical record,' but can be obtained through the request of an EMR audit trail. 
• The timing of changes to the record can imply that charting was slanted in a way to be defensive or misleading (or at least, a plaintiff’s attorney is going to try to do that, even if your intention was well-meaning.)
• Attorneys may infer the importance of a part of the record by seeing how many people were in a chart at a given time, and what they were all looking at, for how long. This information can act like a big red arrow pointing at a specific medication order or radiology result, for example, even if there is no explicit mention of it in anyone's notes. 
• Secure messages, FYI's, Best Practice Advisories, and other prompts are all discoverable (with a little sleuthing) as part of an EMR audit within a few years of their appearance in the chart. 
• If you cosign notes using a template that suggests you did a substantive review of another clinician's care (such as an APP or midwife), be mindful of the fact that the EMR tracks how long you spent in that note, or reviewing that patient's chart or imaging. 

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.

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. 

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.

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:

• Apps: JKZ, Plum Village, Headspace, Ten Percent Happier and Insight Timer (Dr. Pensa and Attorney Morgan have no financial ties)
• Mindfulness Based Stress Reduction and the work of Jon Kabat-Zinn
• Teachings of Thich Nhat Hanh

References:

1. JAMA Internal Medicine. (2019). Effect of a Mindfulness-Based Intervention on Burnout Among Physicians: A Randomized Clinical Trial. 
2. The Lancet. (2020). Mindfulness in Health Care Workers: Benefits Beyond Burnout. 
3. Journal of Occupational Health Psychology. (2017). Mindfulness-Based Stress Reduction for Medical Students and Physicians: A Systematic Review. 
4. Annals of Internal Medicine. (2014). Mindfulness-Based Stress Reduction for Health Care Providers: A Systematic Review. 

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:

• Societal trends that may be fostering the increase in aberration verdicts
• How we can mitigate our fear around the possibility of an aberration verdict
• What happens after an aberration verdict: post-trial negotiations, and real-sizing the risk to your personal assets
• Why defendants should feel empowered to speak up, request preparation, and ask for 'financial risk estimates'
• The ‘reptile theory’ deployed at trial by plaintiff’s attorneys, and how tapping into the general anger in society fuels their persuasion
• Why and how defense teams need to evolve to combat these tactics 
• Now, more than ever, preparation of the defendant should be paramount and start EARLY in the case.

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.

"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

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/

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.

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. 

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 

Learn more about Dr. Pensa at doctorsandlitigation.com.

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, 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!

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.

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. 

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 plead guilty to a lesser charge or 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. 

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:

• "Win - Win" by Rebecca Sposita, Esq
• "Gain Without Pain" by Greg Hammer, MD

You can reach Chad via email at chad@cmtjustice.com. 

We'll be back in a few months with the start of Season Three!

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. 

This month: finger pointing among health care professionals after an adverse event, or during litigation.

We've all seen it: the tertiary care center dumping on the community hospital in their notes. The specialist criticizes the primary care doctor or the ER's management. The doctor blames the nurse. The nurse charts defensively, ending with "MD Aware." The attending blames the resident. The resident blames the attending! All in a chart war, preserved for perpetuity. 

Or even more sinister: a surgeon, after an adverse surgical event, tells the family the awful news -- and then tries to implicate someone else: the anesthesiologist, the CRNA, the radiologist who read the study...

You know we could go on. We've all seen it. 

And then, once litigation starts -- now we're co-defendants. How does this 'blame game' play for a jury? 

Is the chart the place for these disagreements? (Spoiler alert: NO.) Can finger pointing in charting actually backfire and get you pulled INTO a case? (Spoiler alert: YES.)

Our guest today is Heather Hansen, trial consultant and communications expert. For over 20 years, she defended providers and hospitals in medical malpractice cases. She created a curriculum for medical residents, teaching them communication and advocacy tools. She has helped leaders from Harvard Business School, Google, LinkedIn, LVMH, the American Medical Association, and Hospital Corporations of America advocate for change, resources, opportunities, and attention. 

Physician-lawyer Dr. Shilpa Mathew, MD JD, walks us through some basics of tort law and advocacy efforts in the US, how you can get involved, and why it matters. (Note: Dr. Mathew's views expressed in this podcast are strictly her own, and not representative of her employer or ACOG.)

Shilpa Mathew, MD, JD, is a Northern California physician double board-certified in Obstetrics & Gynecology and Lifestyle Medicine. She is a former practicing attorney who spent the latter half of her legal career focused on health insurance and regulatory compliance and brings a unique perspective to the intersection of law, medicine, and policy. She has long been active in health advocacy and policy efforts—ranging from things such as pro bono legal work to protect basic health rights of foreign detainees in US prisons to serving as a medical student delegate to the California and American Medical Associations. She has a particular passion for issues related to medical malpractice and focused her residency research project on malpractice knowledge, attitudes and perceptions of OB/GYN residents nationwide. Currently, she serves as the Co-Chair of the Legislative Committee for the American College of Obstetricians and Gynecologists in California, where together with a team, she helps shape policy to advance women’s health.

BONUS: In the introduction, host Dr. Gita Pensa talks about her own litigation advocacy wish list - there are some 'standard' wishes on there, and some you may not have considered before.

Here is Dr. Pensa's informal Holiday Wish List for malpractice litigation reform. 

• Similar to Utah HB 503 legislation: if doctors carry adequate liability coverage, no going after their personal assets
• Or at least abolish post-judgment wage garnishment, or have limits on duration
• Very clear and consistent protections of retirement accounts and primary residence
• No punitive damages demands without case passing a strict standard/tribunal beforehand 
• Protection for mental health records and peer support/emotional support for health care workers 
• No data bank reporting in no-fault settlements
• Employed doctors can't be named as individuals (think about other corporate litigation -- Boeing, for example. Engineers aren't named individually)
• Employed physicians should get "litigation leave", time for litigation prep and trial, and no adverse consequences if productivity-based

• Caps on plaintiff's attorney contingency fees, and no double dipping for costs above that
• "Loser pays" ("English rule") for legal fees
• Attorney should face consequences for baseless punitive damages accusations
• Limits on venue shopping
• Limits on pre-trial or pre-resolution publicity
• Prohibition of attorney social media posting about active cases, especially disparagement of involved parties
• Sanctions for misleading press pre-trial press releases (which can cause reputational harm for doctors)
• Standards of professionalism for depositions and reasonable limits (6h) for duration (and consequences for not adhering to them)

• Require Michigan Model-type early resolution attempts, and require the doctor and plaintiffs to be in the room together
• Early neutral evaluation (with currently practicing, same-specialty physician input), with ability for outright dismissal for reasonable care
• Time limits on expert retention -- no plaintiff's expert supporting the case a year after filing? No case.

• No testifying if you are not currently actively practicing and in same specialty as defendant
• Medical board oversight of expert witnesses -- with the ability to censure
• Legal implications for outright false testimony 

It's a wish list. But...the only way to move towards any of these steps is through involvement and advocacy. 

Happy Holidays to all, and we'll see you in 2026.

Host Dr. Pensa interviews radiologist Dr. Nirav Patel about his extraordinary journey through litigation...and what he did to become his legal team's secret weapon. 

You can do it, too. 

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Check out Dr. Pensa's recent appearance on The Pitt Podcast -- the HBO Max companion podcast to the Emmy-winning hit show, The Pitt!

Gita Pensa was thrilled to be a consultant for the hit drama The Pitt for the 2nd and (upcoming) 3rd seasons, bringing her expertise in malpractice litigation stress to help the show's writers understand what clinicians carry behind the scenes. She speaks about it more in Episode 10 of the HBO Max companion podcast.

Watch here now:

https://youtu.be/phwbzDMCuUc?si=DUymrA6dE9xYYVx_&t=2070

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Take the LEAP! Be litigation-ready.

Learn from Dr. Pensa's attorney-vetted Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced video course that will teach you about the skills and mindset required to face medical litigation with integrity and know how. Learn many of the techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/LEAP/signup

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Attorneys, Risk, Claims, and Medical Leadership: Learn about "Defense LEAP" and partnering with Dr. Pensa to ensure your medical defendants are supported and prepared from the very beginning. Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

In Part 2 of The Educated Defendant, host Dr. Gita Pensa sits down with the veteran trial attorney who defended Dr. Nirav Patel. (If you haven't listened to part 1, start there!)

John E. Hall, Jr. helps us unpack what made this case different. What does an experienced defense lawyer actually want from a physician witness? What separates a reactive, defensive defendant from one who is credible, collaborative, and compelling in front of a jury?

We talk about preparation, presence, strategy, and the often-unspoken dynamic between lawyer and doctor in high-stakes malpractice trials.

John E. Hall, Jr. is a senior partner at Hall Booth Smith and a nationally recognized trial lawyer focused on defending healthcare professionals and medical institutions in high-exposure litigation. He is the author of Reviving Fairness: Defending Healthcare Heroes and one of the  founders of American Legal Connections, a national network advancing strategy and reform in complex medical defense and other high-stakes cases. John is known for his disciplined trial preparation and proactive approach to preventing aberration verdicts.

Next month, John Hall returns to discuss his newest book, Reviving Fairness: Defending Healthcare Heroes. 

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Check out Dr. Pensa's recent appearance on The Pitt Podcast -- the HBO Max companion podcast to the Emmy-winning hit show, The Pitt!

Gita Pensa was thrilled to be a consultant for the hit drama The Pitt for the 2nd and (upcoming) 3rd seasons, bringing her expertise in malpractice litigation stress to help the show's writers understand what clinicians carry behind the scenes. She speaks about it more in Episode 10 of the HBO Max companion podcast.

Watch here now:

https://youtu.be/phwbzDMCuUc?si=DUymrA6dE9xYYVx_&t=2070

_______________________

Take the LEAP! Be litigation-ready.

Learn from Dr. Pensa's attorney-vetted Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced video course that will teach you about the skills and mindset required to face medical litigation with integrity and know how. Learn many of the techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/LEAP/signup

_______________________

Attorneys, Risk, Claims, and Medical Leadership: Learn about "Defense LEAP" and partnering with Dr. Pensa to ensure your medical defendants are supported and prepared from the very beginning. Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

We talk about themes in his book, and touch on many other facets of litigation, including third party litigation funding (private equity investing in and funding plaintiff's attorney cases) and why even busy doctors should show up for jury duty with the greater good in mind. 

John E. Hall, Jr. is a senior partner at Hall Booth Smith and a nationally recognized trial lawyer focused on defending healthcare professionals and medical institutions in high-exposure litigation. He is one of the founders of American Legal Connections, a national network advancing strategy and reform in complex medical defense and other high-stakes cases. John is known for his disciplined trial preparation and proactive approach to preventing aberration verdicts. He's also an author of other non-fiction and fiction books, a songwriter, and a leading voice calling for the reform of predatory malpractice litigation practices in the US. 

_____________________

Check out Dr. Pensa's recent appearance on The Pitt Podcast -- the HBO Max companion podcast to the Emmy-winning hit show, The Pitt!

Gita Pensa was thrilled to be a consultant for the hit drama The Pitt for the 2nd and (upcoming) 3rd seasons, bringing her expertise in malpractice litigation stress to help the show's writers understand what clinicians carry behind the scenes. She speaks about it more in Episode 10 of the HBO Max companion podcast.

Watch here now:

https://youtu.be/phwbzDMCuUc?si=DUymrA6dE9xYYVx_&t=2070

_______________________

Take the LEAP! Be litigation-ready.

Learn from Dr. Pensa's attorney-vetted Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced video course that will teach you about the skills and mindset required to face medical litigation with integrity and know how. Learn many of the techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/LEAP/signup

_______________________

Attorneys, Risk, Claims, and Medical Leadership: Learn about "Defense LEAP" and partnering with Dr. Pensa to ensure your medical defendants are supported and prepared from the very beginning. Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact