Doctors and Litigation: The L Word

In this episode, we take a hard look at the growing use, and misuse, of punitive damages allegations in medical malpractice cases -- and how this trend has reshaped the practice of medicine in places like New Mexico.

What was once intended as a rare legal tool to punish truly egregious conduct is increasingly being deployed early and broadly, sometimes before the facts of a case are fully known.

It significantly raises the emotional and financial stakes, often destabilizing defendants and influencing decision-making in ways that have little to do with the quality of the care provided, and more to do with avoiding the risk of catastrophic personal loss.

The result is not only profound individual distress, but a ripple effect across the healthcare system.

We explore how this type of environment predictably drives physicians out of higher-risk regions, contributing to growing care deserts, and ultimately affecting patient access and outcomes. What happens to a healthcare system when the legal climate becomes too predatory, too dangerous, for good doctors to practice there?

Defense attorney Jessica Marshall , partner in the Albuquerque office of Mayer, LLP, is here today to help us make sense of these implications. We discuss the dramatic loss of access to doctors in New Mexico as a direct result of its predatory malpractice climate, and, in particular, the weaponization of punitive damages as a routine pressure tactic. We also highlight the positive results of recent staunch advocacy from doctors, lawyers, and patients alike, hoping to restore access to care in New Mexico.

We end with a call to action: what is happening in your state?

In nearly every state, plaintiff's attorneys exert heavy lobbying dollars, and even become state legislators in order to introduce legislation that enriches them. Even in states with current common sense protections, there are efforts to walk back limitations of the use of punitive damages and existing caps on damages. But, as you'll see in this conversation, when that happens, there can be devastating real-world consequences for patients and their doctors alike. It's not theoretical. 

Have a listen and share this with your colleagues. 

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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 this episode, host Dr. Gita Pensa sits down to continue her conversation with elite defense trial attorney, John E. Hall, Jr. His recent book, "Reviving Fairness: Defending Healthcare Heroes", outlines the shifts in the modern world of American medical liability litigation, and offers a timely call to confront the malpractice climate harming clinicians and threatening access to care.

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. 

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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

What happens when a physician defendant doesn’t just “get through” litigation — but prepares for it?

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

THIS EPISODE is a must-listen for anyone facing, or fearing, litigation. (And their attorneys.)

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. 

 

_____________________

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

This month we take a high level view of the landscape of 'tort reform' in the US (and what does that even mean?)

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. 

BIG picture, pipe dream stuff:  no-fault systems or state based compensation funds, healthcare specific courts, specialized judges...
 
Protection for doctors 

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

 
Attorney reforms

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)

Early resolution programs

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.

Expert Witness Reform

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.