Medical malpractice can quietly shape how physicians practice, think, and live. In Part Two of this powerful conversation, Dr. Lee Sharma and Dr. Gita Pensa explore litigation reform, physician advocacy, media narratives, healthcare workforce shortages, and why doctors must stop allowing shame and fear to silence their voices.
What happens when the system surrounding medical malpractice begins influencing not only patient care, but the doctors delivering it?
Dr. Gita Pensa joins Dr. Lee Sharma to examine how litigation, financial pressures, media narratives, and fear can affect physicians, healthcare systems, and access to care. They discuss why litigation preparedness and reform are ultimately patient-care issues.
The conversation challenges physicians to move beyond silence and shame and become advocates for themselves, their colleagues, and the healthcare system. Dr. Pensa explains how doctors can use their voices, share their experiences, engage legislators, and recognize that difficult events do not have to stop them from living meaningful lives. The episode closes with a powerful reminder: medicine deserves defending.
Listeners will learn why malpractice preparedness, physician advocacy, transparency, and litigation reform matter for protecting doctors, strengthening healthcare systems, and improving patient access.
Top 3 Actionable Takeaways
About the Show:
Behind every procedure, every patient encounter, lies an untold story of conflict and negotiation. Scalpel and Sword, hosted by Dr. Lee Sharma—physician, mediator, and guide—invites listeners into the unseen battles and breakthroughs of modern medicine. With real conversations, human stories, and practical tools, this podcast empowers physicians to reclaim their voices, sharpen their skills, and wield their healing power with both precision and purpose.
About the Guest:
Dr. Gita Pensa is an emergency physician, educator, nationally recognized speaker, and leading voice on the impact of medical malpractice litigation on physicians. After spending 12 years as the sole physician defendant in a multimillion-dollar malpractice case involving two jury trials, she transformed her experience into physician education, litigation coaching, consulting, and advocacy. She created Doctors and Litigation: The L Word and has also consulted on Season 2 of The Pitt.
Website: https://doctorsandlitigation.com
Podcast: Doctors and Litigation: the L Word Podcast
About the Host:
Dr. Lee Sharma is a gynecologist based in Auburn, AL, with over 30 years of clinical experience. She holds a Master’s in Conflict Resolution and is passionate about helping colleagues navigate workplace challenges and thrive through open conversations and practical tools.
I'm Lee Sharma, and this is part two of my conversation with Dr. Gita Pensa about medical malpractice and what I've been calling the invisible hand, the forces that quietly shape how we practice medicine, often without us even realizing they're there. If you haven't listened to part one, I'd encourage you to go back and start there.
Otherwise, let's get right back to my conversation with Dr. Gita Pensa
I think so much of wrenching this invisible hand of medical malpractice and the effect that it has on us personally and as a profession is really what you're showing us, and you're showing it not only by the work that you're doing, but by the way you're living your life. You're showing us that this is unfortunately a part of practicing medicine, but accepting that means that we can equip ourselves, and we can equip ourselves in a very practical way, looking at our limits, looking at our malpractice.
I actually had an OBGYN faculty in residency and I think he was definitely ahead of his time. He used to talk to me about the fact that I shouldn't own anything on paper I should let my spouse own everything on paper because he said, "In the event that I am sued, I have nothing.
And what you don't wanna get is divorced In that case, but y- yes. I mean, having someone who can, like, advise you on these things is very important.
Right. Yeah. but that was the first time I think I'd ever thought about [00:32:00] that. And then I think the other part of this that you speak to so beautifully is the idea that when we rip the shame off of this, when we accept that we can be great doctors and we can be here to serve our patients and still go through this- and it's not a reflection on who we are. It's not a reflection on our calling. It's not a reflection on the quality of medicine we practice. It is a thing. It is a thing that happens. Yeah. And that knowing that, can we learn to equip ourselves? And if that training starts in internship, medical school, residency, that's a good thing.
That's a good thing. that's a good thing to introduce that. Right. That's not gonna scare people away from practicing medicine. My goodness, they've already taken the MCAT. How much more scared can they be? Right. Just go ahead and let them get into it.
That's right. We have to start acknowledging now that, like, this, what is happening right now with litigation, is actually a threat to care.
It's a threat to our patients. This is a threat to our patients, right? Litigation reform, litigation preparedness, all of these things are actually in support of patient care because the plaintiffs' attorneys are [00:33:00] selling everybody a lie, which is that these multimillion-dollar verdicts are the way to make care safer.
It does not. We have data. there are researchers out there that look at this. It has nothing to do with the quality of care. All it does is bankrupt a system and have less money available to pay its people, right? It's, I mean, staffing goes down. Like, it's a huge drain on the healthcare system.
And then when we leave because of this predatory climate, things get worse for everybody. And so I think that some of the distaste in the past has been this feeling that, like, we don't wanna come across like we're not pro-patient safety. it seems wrong to come across, like, we should defend ourselves.
And I really believe that good care deserves defending, and the house of medicine right now is literally under siege from all sides, right? We are beset on all sides, and we need doctors to actually talk out loud, to raise [00:34:00] their voice, to get involved, to advocate, right? Instead of just avoiding this because it feels uncomfortable.
Because we've abdicated our responsibilities in this way, like, the, yes, the tort system has taken over like medical grievances, right? I was talking to a client today. This case is like a nothing burger. Like, There's, like, no damage. She did the right thing for this person, and they were unhappy about it, and so they sued, and they found somebody who would take this case under some informed consent craziness, right?
it's baloney And she is absolutely letting this derail her, right? And it doesn't deserve that, right? This is something that needs to be defended against, right? And we need to give people the tools to do it. Because right now the plaintiffs' attorneys, like this is generational wealth they're trying to create mostly for themselves, right?
this is not the patients who are driving this, right? This is plaintiffs' attorneys who are, I gotta say it, extraordinarily greedy. And the tactics that they're [00:35:00] employing right now, the psychological warfare that they are exerting. So let's look at New Mexico, right? In New Mexico, they finally had to pass legislation recently, which was very hard to do because so many legislators are actually practicing plaintiffs' attorneys, right?
Yeah. Mm-hmm. There's a pipeline from plaintiffs' attorney to state legislator in most states, okay? You- if you look up how many trial attorneys are in the legislature, I mean, there's sort of a natural affinity for them and the law, right? But a lot of them, they will be practicing plaintiffs' attorneys, and will they support legislation and, legislation to support tort reform or litigation reform?
They will not, right? That's just not gonna happen. But we need to get, be aware of these things. And so in New Mexico, where the psychological warfare was the point, right? They created a system by which nearly 90% of all lawsuits that were brought forth had punitive damages attached, like early in the case, right?
Before, let's... So punitive damages are meant to [00:36:00] punish the doctor, and they are not covered by insurance, right? And so they're asking for millions of dollars out of the physician's assets from the get-go in 90% of all cases, right? So what do you think happens in New Mexico? You cannot get a doctor in New Mexico except for certain places where, you know, if they're really insured by the hospital system and they feel some protection through the hospital system.
But like private practice in so many parts of New Mexico, like I've had defense attorneys say outright to groups of people, "Do not practice in New Mexico. If you practice there, you are out of your minds." So now, like they are trying to back up and sort of bring in some new legislation to make it, less onerous, but they drove so many doctors away, and it's hard to get a doctor to move.
Like, when you think about everything that goes into building a practice and your privileges and like, it's hard to pick up and move. But they moved. And so we really have to start thinking about how do we allow this to go on? it is insane. [00:37:00] And so, you know, another relationship that they have is with press outlets.
So you will notice the hype in certain cases. A lot of times this is driven by, hold onto your hats, this is driven by third-party investors. So third-party investors, both domestic and international. There are like investors from China who are like betting against your lawsuit, right? They come in and They pay for expenses in either one or a pool of cases, right?
Hoping that one of them brings in these 50, $100 million verdicts, 'cause that'll re-pay their investment. The plaintiff, by the way, will only get, after the lawyer takes probably half, it's usually 40% plus expenses, plus then whatever the investors put into it, the plaintiff's going to get some small percentage of this, if it ever winds up in their hands anyway, 'cause of course that's gonna get appealed and it's gonna held up, get held up for all sorts of reasons.
But the investors will come in and they will fund media projects, right? Or the plaintiff's attorneys advertise heavily in most media outlets, and most media outlets are [00:38:00] more than happy to hear about their story from the plaintiff's point of view. Defense is usually not... This is where we need to step up our game, too.
Like, usually it's either a no comment or they could not be reached, right? And then they get this very one-sided account that makes everybody in that area feel unsafe, right? Yeah. And that's your jury pool. Where's your jury coming from, right? That's your jury pool. And will they say, "I don't know about this particular case in Jerusalem," but yeah, you know what?
It taints the water, right? So everybody feels like, oh, these hospitals are bad. These doctors are unsafe. And so that's the natural bias, and the plaintiff's attorney sweeps in and says, "The way for you to remedy this is to give us $75 million," 'cause you gotta send them a message, right? So no longer- Yeah
is this about the care about one person. So why am I telling you all this? Not to scare the pants out of everybody, but to say we gotta start advocating, right? Yeah. Like, medicine deserves defending. You should feel good about defending good care. Like, don't hide. You are good at this. Sometimes adverse events happen, and they [00:39:00] cannot be predicted or prevented.
That is an absolute fact, right? You did not create this shoulder dystocia. You did not create the placental abruption. You did not create these situations, but they act as though you did, and that your failure- ... to both predict and prevent means that, you will pay in perpetuity for your sins.
Yeah. And this is absurd. Yes ... it is absolutely absurd. And so we have to start pointing out the absurdity of it, and the fact that this is why you can't get into your doctor for six months. We gotta start having these conversations. We can't be afraid like this.
Yes. 100%. And this is the reason I'm so glad you're here,
because I did not know that. I did not know about the third-party investors. Ooh. But it makes so much sense. And my daughter lives in Clovis, New Mexico, but guess what?
She has to drive an hour and a half to go see an OBGYN. There you go. Because the one OBGYN that was in Clovis, New Mexico, closed up their shop and left.
There you
go. I [00:40:00] do have a really good friend who's a pediatrician in New Mexico. Her name is Dr. Nancy Wright, and she did run for the legislature this past time, and she lost-
the primary . But we were so proud of her for- making the effort, because this, again, how do we change? How do we advocate? How do we actually take the situation and don't just say we're victims of it, but actually say- we believe that we can actually change, rip this invisible hand away from the house of medicine?
How do we do it? With what you're doing, tell these stories, get these stories out there, because I hope that people who listen to this episode of the podcast will tell 12 people what you just said. I hope so too. Because that's illuminating. Yeah. I mean, that's huge, and especially if you tell those stories to non-medical people
Mm-hmm
then you really start to change minds. Because it's not me saying, "Oh, I believe this doctor did the right thing." It's saying, "You know somebody in another country just paid $25 million for you to see this story on the news." And [00:41:00] that way anybody who watches this thinks that my whole hospital system is corrupt, and we're all out here just for the buck, and we're not here trying to serve our patient population.
No, it's incredible. It's really incredible. I mean, film projects, podcasts, you would not believe where the funding comes from. It doesn't have to be disclosed. And Whenever you see a news story or hear some kind of account of, like, a medical whatever,
you always have to think, like, what is the other perspective? We've sort of lost all that. And you would be shocked at how a story on its, honestly, on its face sounds so terrible, and even I reading this news story would be like, "Geez, how did that happen?" Right? Like, that sounds pretty bad.
And then you actually hear the facts of the case and you're like, "Wait no, no, no, no. This is, like, being completely misrepresented." And, like, actually what happened was totally understandable. But we just get so primed by the media, and so now, honestly, what's happened is this whole cultural shift in a lot of people not trusting doctors, right?
And so sure, that [00:42:00] has implications for who your jury pool is, but it also has implications for all of us. Like, it was always a tough battle but now it's made exponentially worse by people who believe that, at best we're incompetent, at worst we're, like, out to get them. And that's not true. It's not true.
And so I really want people to defend their good care and to defend medicine and just get out there and use your voice. Like, we're not victims, we're doctors. And we are actually really good at what we do, and we care a lot about our patients, and nobody else in this whole system has made the oath that we have.
And every single doctor I know would go to the mat for any one of their patients on any given day. And it would be a lot easier to do that if there weren't these crazy forces, these invisible hands, as you say, like, completely keeping you from doing that.
I love it. No. No, no, no. We need this. and this is the thing, and this is the reason I'm so glad you're here. We need this. We need this call to action. We need the energy that you are putting out there for us to [00:43:00] all do something. It may not necessarily be going out and sharing your knowledge and being a consultant on a huge TV show that's gonna reach millions of viewers.
That may not be how you express that call to action. But even if it's sharing with one patient, even if it's sharing with one colleague, even it's actually saying, "I had this happen to me and I wanna talk about it, and I wanna make it-" Mm-hmm ... okay for you to talk about it too-" That's huge ... then this is the call to action that we need.
That's right. Just today a physician wrote on KevinMD about how litigation drove him out of medicine, right? Like, ... he retired. He just, couldn't. He wound up even getting dismissed from the case. but he wrote a great piece about that.
Write. Use your voice. Call your legislator. Tell them why it matters, right? There is so much that like, one person can't do all of it, but everybody could do something. Yeah. and even if it is just, telling that friend that, you know, it's okay to talk about it and it doesn't change a thing about what I think about you, because I understand that this is just unfortunately part of being a doctor in [00:44:00] America, right?
Yeah. And whether or not you wanna move to New Zealand, 'cause a lot of people are doing that. Like, maybe that'll happen. But, right? This is the system that we've got otherwise, and we deserve a voice. And we should use it.
We do. And it's funny that you mention New Zealand because actually my kids and I climbed Mount Kilimanjaro in 2021, and our guide was moving from Seattle to New Zealand, and his wife is a- Mm
PA. And so apparently, I guess if you're a health professional, it's very easy to move to New Zealand because they really want people in their healthcare system. Yeah. So he was telling me, it's like, you know, you could move to New Zealand tomorrow. You really could. And my husband's pulmonary critical care, so when we got back after the trip, I said that to him and he's like, "We could live in New Zealand?
Really? We could move to New Zealand?"
There was an article- And- ... about it in the Wall Street Journal recently about, like, the- Yes ... the flight of doctors to New Zealand. But they have a really- How many of
them wanna go?
But yeah, they wanna go, and they have a much more sane, litigation system over there.
Mm-hmm. and again, the point is not that like, I mean, patients do get harmed, not at the rate that people say they do. This whole, medical error is the [00:45:00] third leading- Yeah ... cause of death baloney is like, that is not true. When they say that .
That has been debunked. That study was ridiculous. You may as well say that vaccines cause autism. This is not real.
Right.
And so no. But yes, bad things do happen sometimes, and we do make mistakes, right? and there should be a system of recourse for that, and it should be reasonable.
What's happening right now is completely unreasonable. This is not okay. It is.
No.
Not okay.
and I told my husband, the reason why I would never leave is 'cause I believe in this healthcare system, and- Mm-hmm ... I would rather stay here and fight for it I get it would be easier. I understand that.
But I would rather stay here and fight for this one, because I believe in this one.
I will be right here with you 'cause I'm not moving either.
Before we go, I wanna do one thing. I wanna share one thing because this was on LinkedIn today under the Doctors in Litigation page.
Okay.
And the reason why I wanna talk about it is because I think it was beautiful. Do you know what I'm about to talk about?
The, oh, they put the ballroom dancing [00:46:00] picture up, I think, right?
That- They did. Yeah. They put the ballroom dancing picture. So they posted this, and you are gorgeous by the way. Oh my gosh.
so how many years ago? Eight years ago now, right? Oh my God. So yeah. So a lot can change in eight years.
But if any of you follow Doctors in Litigation on their LinkedIn page, there is a beautiful picture of Dita in a ballroom dancing competition, but what I wanna talk about, and the reason I wanna close with this, is because the message of the picture was, I guess, that picture was taken, did they say like a few weeks before?
It
was a week before trial started. Yeah.
I will say I'm not a ballroom dancer. Like, I'm not. this is a charity thing that was, like, modeled after Dancing with the Doctors. ... and I signed up for it in anticipation of the trial to keep me in, like, a sort of a good space to remind me that, like, there is life beyond this and it can be kind of fun.
Yeah ... and so I leaned into it heavy. But anyway, go ahead.
But what I loved about it is that I feel like sometimes as clinicians and people who work [00:47:00] very hard and we're very goal-directed individuals, that when we have these kind of things happen and we have challenging things happening to us, that sometimes there's this lie that starts to permeate that I can't enjoy my life until all of these things are taken care of.
Yeah.
That I can't enjoy my family. Nope. That I don't deserve to sit and have a nice glass of wine at the end of the day because I have this bad thing happening to me. Yeah. And I loved that picture because it was basically such a beautiful act of agency, rebellion, truth, however you wanna phrase it.
But you basically said, "Yes, I have this thing happening to me and it's terrifying, but I'm going to live my life and I'm going to enjoy it, and I'm going to immerse myself in something that really is joyous." And I wanted to thank you for sharing that and posting that, because it meant a lot to me to see that.
And I think it's an important, vital message- Yeah ... for all of us to understand that just because we're going through something terrible like litigation, does not mean we have to stop living our lives and enjoying the people around us and enjoying who we [00:48:00] are.
Yeah. I mean, there's definitely the messaging that, like, life stops once this happens, and it should not.
It doesn't deserve that, especially the way it is in its current form. Like, it does not deserve that at all. This is something that happens to you in the course of practice. And I think we tell ourselves stories about what we deserve and what we don't deserve and when something bad happens at work that it means that you need to suffer for the rest of your life, and I'm not sure I buy that.
Amen. Gita, thank you so much for being here. This has been amazing.
I'm so happy that you asked. Thank you.
For those, if anybody wants to find you, if they want to follow Doctors Litigation, we'll put the link for the podcast on the show notes, but if they want to reach out to you directly or if they are looking for support going through this process, how would they best find you?
Website's good. It's Doctors and Litigation all one word together, and you spell out the A-N-D, so doctorsandlitigation.com.
Awesome. Thank you so much. [00:49:00]
My pleasure.
For all of our peaceful warriors who have joined us today, if this podcast resonated with you, please share it with a colleague or a friend.
Please reach out to somebody and exercise transparency, and let's take the shame out of this whole process. But thank you for joining us today on The Scalpel and Sword, and until next time, be at peace.