Doctors and Litigation: The L Word

This month we're taking a look at the data available to physicians regarding their risk of malpractice litigation in the US.

We are typically limited to survey data, national insurance company claims data, and data from the National Practitioner Data Bank. We discuss some of the limitations of these, and our increasing appetite for more specialty-specific, geography-specific granular data, and the potential for building better databases that pull comprehensively from these resources and local public records. Doctors deserve clarity and specificity of information in order to make informed decisions about where, and whether, and in what manner, to practice. 

The best data we currently have comes from large insurer claims databases. In today's episode, host Dr. Gita Pensa has the privilege of talking to Robert E. White, Jr., President of The Doctors Company and TDC Group, and the author of a recent article detailing the company's most recent internal data on claims frequency and severity. The Doctors Company is now the largest physician-owned medical malpractice liability (MPL) insurer in the United States, and operates in all fifty states. 

The article, "Fewer Physicians Report Being Sued but Medical Malpractice Claim Severity Keeps Rising," details trends of lower frequency of claims but higher severity (increased financial losses per claim), and what that may mean for future costs, impacts on physician practice, and patients' access to healthcare. 

Robert E. White, Jr., is President of TDC Group. In his current role, Mr. White oversees the operations of the four business units that make up TDC Group: The Doctors Company, TDC Specialty Underwriters, Healthcare Risk Advisors, and ProAssurance. He assists in the growth of TDC Group and expands its mission-based platform for service to healthcare in whatever practice model members and insureds choose.

Mr. White has more than 50 years of experience in the insurance industry. He managed the claims and loss prevention departments of several commercial and doctor-owned insurance companies before coming to The Doctors Company in an administrative capacity more than 25 years ago. Additionally, he served as President of the insurance operations of FPIC Insurance Group from 2002 to 2011.

Mr. White is Chairman of the Board of the Florida Justice Reform Institute, a Member of the Florida Chamber of Commerce Board of Directors, and a Board Member of the Florida Insurance Council, as well as a Board Member and former Chair of the Board of Governors of the Florida Medical Malpractice Joint Underwriting Association. Mr. White is also a former Board Member of the Medical Professional Liability Association, and currently serves on three of its committees. Mr. White received the 2026 Award of Excellence in Honor of Peter Sweetland; the award recognizes individuals who have demonstrated exceptional service, leadership, and long-standing commitment to the MPL community.

Related Resources for further learning and context:

Communication after Catastrophe (S3, E1): podcast with Dr. Anthony Orsini

'Nuclear Verdicts' (S2, E5): podcast with Dusty Otwell, JD

‘Medical errors are the third leading cause of death’ and other statistics you should question

(Health Journalism, 2023)

Appeals court reverses over $200M judgment against All Children's Hospital in 'Maya' case, NPR / WUSF 2025

The Weaponization of Punitive Damages (S3, E7): podcast with Jessica Marshall, JD

Lifting the Shadows: Restating the Case for Reforming Third-Party Litigation Funding (TPLF), Institute for Legal Reform product, US Chamber of Commerce, October 2025

_____________________________________

Take the LEAP! Be litigation-ready.

Doctors and Patient-Facing Clinicians: Learn from Dr. Pensa's Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced, attorney-approved 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 performance coaching techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/leap-for-clinicians

_______________________

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. I help with the fear, the confusion, and the basic education -- so your time with them is spent on elevated strategy instead of groundwork.

Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

Imagine you are a highly capable physician who saved a patient's life. You're sued over it anyway. 

Actually, your hospital system is sued for it, but they need you to defend it.

You spend days preparing for deposition, then eventually many weeks preparing for trial -- not to mention the five years of stress you endured leading up to it. You miss work for days of meetings with attorneys, and then for several weeks at trial, where you are maligned, misrepresented, and personally attacked.

Nevertheless, you testify like a consummate professional, bring the whole thing across the finish line, secure a victory for your hospital in court..and start learning to live with the scars.

And then? You return to work. You have to work a lot extra, because now you have to make up all the shifts you missed during prep and trial.

But nobody at work seems to know anything even happened. No one from Risk or leadership acknowledges your actions, or says 'thank you for saving the hospital $30 million'. No one mentions anything about what was the most difficult experience in your professional life. And when you meet with your boss for your scheduled annual review after your return, he asks you how your "vacation" was.

This was the experience of one of my clients, and it is a shockingly common one. In fact, it's the norm. And, unsurprisingly, it creates a lot of resentment. 

This is not good leadership. 

This episode is about how to be a better leader for your physicians, nurses, and other clinicians in litigation. It's a conversation about why it matters, and why it's both the right thing to do and advantageous to your organization's bottom line.

Have a listen to learn about host Dr. Gita Pensa's 10-point framework, one she workshops with hospitals and medical organizations across the country. 

Mentioned resource:

Becker's Hospital Review: Uncontrollable Stress in Healthcare Workers May Be a Legal Hazard Researchers Argue

_____________________________________

Take the LEAP! Be litigation-ready.

Doctors and Patient-Facing Clinicians: Learn from Dr. Pensa's Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced, attorney-approved 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 performance coaching techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/leap-for-clinicians

_______________________

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. I help with the fear, the confusion, and the basic education -- so your time with them is spent on elevated strategy instead of groundwork.

Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

Physician assistants (PAs), nurse practitioners (NPs), certified registered nurse anesthetists (CRNAs), certified nurse midwives (CNMs), and other non-physician clinicians increasingly face malpractice litigation -- sometimes along with a physician...and sometimes not. 

For the purposes of education, we'll put them all under the umbrella of Advanced Practice Provider, or APP, although their roles vary greatly, and we acknowledge this.

And, although it barely seems possible, APPs usually have had even less education about litigation than physicians. 

This episode starts with the story of a PA who won at trial, describing the experience in her own words.

We then discuss some critical issues for APPs in litigation, and the doctors who work with them, with defense attorney Anthony Abeln, of Hamel Marcin Dunn Reardon and Shea PC. Mr. Abeln is a member of the bar of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts.  His practice areas include professional liability defense, hospital and medical law, product liability, and others. He holds degrees in law, educational policy, and history and policy, and is a member of the bar of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts.  He also teaches legal writing and appellate advocacy at New England Law/Boston.

_______________________________________

Take the LEAP! Be litigation-ready.

Learn from Dr. Pensa's Litigation Education and Performance for Clinicians course. Up to 16 hours of AMA Category 1 CME/CNE credits available in this self-paced, attorney-approved 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 performance coaching techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/leap-for-clinicians

_______________________

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. I help with the fear, the confusion, and the basic education -- so your time with them is spent on elevated strategy instead of groundwork.

Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

Litigation in the U.S. is an enormous business sector. Tort costs exceeded $529 billion in 2022, rising at 7.1% annually between 2016 and 2022, outpacing both inflation and GDP growth. Medical malpractice litigation is part of this machine. The burden gets passed back to American households through higher premiums, defensive medicine, and reduced resources for care. 

Your opponent in litigation is not the plaintiff. It's the plaintiff's attorney, who is part of this industry -- and you are what stands between them and, potentially, millions of dollars.

So doesn't it make sense that they will try any tactic available to them to win--even if they know, deep down, that your care was reasonable? 

Trial consultant and communications expert Heather Hansen returns to the podcast to talk about knowing your opponent: what plaintiff's attorneys are doing, why they're doing it, and how unprepared physicians can get stuck in sticky traps, even when their medicine was good. Plaintiff's attorneys publicly teach their newest tactics to one another as a matter of furthering their business interests -- and now you can understand what they're doing as well.

Guest: Heather Hansen is a deposition and trial consultant, and a renowned expert on persuasion, influence, and credibility. For over 20 years, she defended providers and hospitals in medical malpractice cases. 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. Heather has been featured on The Today Show, Dr Oz, CNN, Fox News Channel, MSNBC, CBS, and Fox Business. She’s the best-selling author of The Elegant Warrior: How to Win Life’s Trials Without Losing Yourself.

Mentioned Resources:

_______________________________________

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 performance coaching techniques Dr. Pensa uses with her own 1:1 coaching clients. 

START HERE: https://www.doctorsandlitigation.com/leap-for-clinicians

_______________________

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. I help with the fear, the confusion, and the basic education -- so your time with them is spent on elevated strategy instead of groundwork.

Contact Dr. Pensa through her website to learn more: https://www.doctorsandlitigation.com/contact

Perfectionism is one of the most underappreciated drivers of suffering in malpractice litigation, and one of the least talked about. In this episode, Dr. Gita Pensa is joined by Dr. Amna Shabbir, dual board-certified physician, Master Certified Life Coach, and TEDx speaker, to explore how the perfectionism that made us good doctors becomes our own worst enemy when we are sued.

We explore the shame-perfectionism cycle that medicine instills in us, how it shapes our response to being named in a lawsuit, and what it looks like to move from self-punishment toward excellence grounded in courage and clarity. We emphasize that civil litigation is a dispute resolution mechanism, not a verdict on your care or your character, and explore why that distinction is so hard to hold onto. 

Dr. Shabbir is the creator of the Courage Bridge, a framework for high achievers ready to redefine success without sacrificing standards.

In this episode:

Resources mentioned or recommended:

_______________________

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-for-clinicians

_______________________

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, 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. 

_______________________

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

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. 

_____________________

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. 

_______________________

_____________________

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. 

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.