What You Should Know When The Government Comes Knocking

In this podcast, we revisit the world of criminal investigations in healthcare. Medical malpractice litigation falls under the umbrella of civil litigation, but there are other ways in which healthcare workers may find themselves under criminal investigation or interacting with law enforcement in the course of their duties. We've talked about fraud and Department of Justice investigations in the past, and we've also discussed the RaDonda Vaught criminal trial. What are some other circumstances in which our work intersects with the law, and what should we know about handling those intersections? Host Dr. Gita Pensa sits down with attorneys Dusty Otwell and Matthew Keris to talk about what you should know. Matthew Keris has defended health care providers, businesses and device manufacturers in civil litigation for more than two decades. He is a shareholder in Marshall Dennehey's Health Care Department and Chair of the EMR and Audit Trail Practice Group. In addition to his litigation practice, Matt is a recognized thought leader whose insights have been featured by prominent outlets including NBC News, Thomson Reuters, and Law360. He is frequently invited to provide commentary for leading industry publications such as The Legal Intelligencer, Becker’s Hospital Review, ED Legal Letter, Risk Review, Litigation Management, and Counterpoint. Matt also serves as an editor of the health risk management journal, Patient Safety. Dusty Otwell, JD, is Vice President and Chief Risk Officer at USACS. He also serves as President and Corporate Secretary for the Clinician Assurance Risk Retention Group, the self-insurance carrier for USACS. He is a faculty member of the Center for Emergency Medical Education and teaches the High-Risk Emergency Medicine Course. Dusty oversees all claims defense, insurance, and enterprise risk management for USACS, the largest Physician-owned provider of integrated acute care medicine. USACS serves over 11 million patients annually at more than 400 programs. Dusty is responsible for industry-leading results in malpractice risk management, consistently achieving claims rates less than one-half of comparable benchmarks. _____________________________ Related article: in this podcast we discuss the chilling effect that threats of criminal litigation have on access to medical care. October 21, 2026: NYT on access to maternal care in Idaho, post-Dobbs decision https://www.nytimes.com/2026/10/21/briefing/idaho-womens-health.html "In the four years since the Supreme Court overturned Roe v. Wade, prompting a near-total ban on Idaho abortions, more than a third of the state’s obstetrician-gynecologists have left, closed their offices, stopped practicing obstetrics or retired. Now half of Idaho’s counties don’t have an OB-GYN. There are just 170 obstetricians in the state today — less than two for every 10,000 women there. (Nationally, it’s about twice that.) Facts from the Gem State: Three rural hospitals have closed their labor and delivery wards because they don’t have enough doctors. The wait time for a hysterectomy, even in more populated areas like Boise, can be six months. For an annual exam, it’s more like nine months. And if women face life-threatening complications during childbirth or a miscarriage, they’re increasingly flown out of state for treatment that OB-GYNs in Idaho could be jailed for administering. The result? It’s now more dangerous to be pregnant in Idaho." ______________________________

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 medi

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 Duty to Reduce Uncontrollable Stress in Healthcare Workers. Help Is on the Way Health; Privatera et al., 2026.

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: