The Anatomy Of A Medical Malpractice Lawsuit

Co written by Joel P. Leonard

These materials should provide some comfort and assistance to you the next time a patient or family leaves your office screaming that they are going to go straight to their lawyer.

Plaintiff's counsel and consumer advocates would have us believe that bad medical care causes lawsuits. There have been numerous studies suggesting there is considerably more bad care than there are lawsuits. Experience suggests that the quality of care and the existence of a subsequent lawsuit may be practically independent events. You are presumably doing everything you can to avoid bad results. But among the other causes of suits, there are also many are things you can do something about:

Bad results happen--and could be considered a cause of lawsuits by themselves. But lawsuits often happen when the result is worse than the patient or family has been led to expect. This is not always a failure of communication by the health care provider. The patient and family are often not receptive to hearing what the health care providers are telling them.

Realistic expectations and clearly understood follow-up instructions are probably the two best preventative measures for litigation. Documentation of each of these steps also helps. Documentation is a form of communication.

Communication among health care providers is also important. Poor communication among health care providers can lead to mixed messages being communicated to the patient and to finger pointing among the providers.

Perhaps nothing will be more likely to cause a lawsuit than finger pointing among health care providers and allied personnel. Finger pointing not only encourages lawsuits, it makes a suit very difficult to defend once it has begun. Obviously, avoid finger pointing yourself. If someone else is finger pointing, go to the hospital or a facility risk manager and ask him or her to do something about it.

This could be considered part of communication, but it deserves separate mention. Angry people look for ways to fight back. Many patients are already angry by the time they see you because they have had to wait for health care. Brusk or rude treatment following a long wait will leave the patient and/or their family looking for something to complain about.

Most patients and family do not want to be visiting a doctor. Medical offices are not always set up, or managed, to be friendly places. A little extra effort to overcome these stresses can go a long way to making a family love the health care providers who valiantly, but vainly, struggled to save someone's life, as opposed to loathing the malpracticing slackards who rudely disdain to provide essential care.

One of the best purposes of documentation is to clearly establish the instructions given to patients. Do not overestimate your patient. Conversely, do not underestimate your patient's ability to fail to follow instructions, or follow them incorrectly. Juries can, and have, found medical malpractice where patients have failed to follow fairly clear instructions and/or where the patients would have followed them if they had understood how important the instructions were.

The advent of pre-printed and/or computerized and customizable forms goes a long way to improving the quality of documented instructions that a patient receives if a copy of those instructions is placed in the chart.

There are many cases where physicians are sure that they are going to get sued or you feel something has gone obviously wrong. Sometimes they have ongoing contact with the family and/or the patient is seen in your office again. It is wise to remain cordial, but avoid discussing details of the prior care. People's memories tend to change over time; an apology becomes an admission of guilt that will be testified to by the family.

As mentioned above, (see "Finger Pointing") similarly, making a disparaging statement about other care provided may be the seed that grows into a lawsuit. Once planted, it like many species of weeds, may prove hard to contain, and your care would undoubtedly also come under scrutiny.

Casual discussions of difficult cases is inevitable. Be aware that there is no legal protection for such discussions if they occur outside of a Q.A. setting. For some reason, this appears to be a shock to many physicians. You should assume that any discussion you have outside a Q.A. or attorney-client setting is something into which an attorney can subsequently inquire.

Some physicians have been known to sleuth out a case on their own, just out of curiosity, or some other compulsion. It is undoubtedly good medicine to learn from difficult cases. However, extensive discussions, personal notes, etc. will probably be subject to pre-trial discovery, as outlined, below.

You will hear in any medical/legal seminar that charting is important. Doctors all know there is little time and often little space for charting. But charting by exception is often not an easy concept to sell to a jury or plaintiff's counsel.

In the real world of practicing medicine, medical records are often corrected and modified for a period of time following the provision of care. This can become a dangerous practice once you have knowledge that a claim might be brought. Do not alter the medical records in a matter which you suspect may become a suit. If a change in the medical record comes to light, juries almost universally react with suspicion. If a portion of the medical record disappears, some judges will allow the jury to infer that the doctor or the hospital was trying to hide something.

When hospital procedures allow it, an after-the-fact note or supplement to the record is acceptable. It should be clearly dated, and any prior note should not be destroyed or obliterated. Juries tend to construe notes as self-serving, but if all entries are made in conformity with hospital charting policies, the notes are not likely to be interpreted as inaccurate or inappropriate.

After a case has gone bad, you must be careful about completing your charting. Do it in the appropriate time frame, but do not go back and change charts. While this may appear obvious, it is occasionally done by health care providers. If it comes to light that a chart no longer reads as it used to read (and you will be surprised what people have copies of) a lawsuit can become practically indefensible, even if the care was appropriate.

In almost all states, interviews for quality assurance, and documents created for quality assurance, are protected from being discovered in a subsequent civil action. However, if you keep a copy of such documents, or if you keep your own notes, those items are probably not protected. Make sure you follow the rules for your Q.A. system if you want the materials to be protected.

If you feel a need to document more than is already in the chart, consider either creating a supplemental note or writing a letter to your attorney. In most states, letters to your attorney will stay privileged unless and until you waive that privilege.

Although the national and some state reporting statutes create an incentive for physicians to handle potential claims themselves, this is quite dangerous. Any discussions between you and the patient and/or family will not be confidential. The patient and/or family will have a different recollection of those discussions than you do; they will remember that you admitted liability while apologizing profusely.

An offer to pay money (beyond writing off the bill) may only cause some potential plaintiffs to taste blood, and then run to an attorney. This caution should be balanced against the very real benefits that can arise from writing off a bill. Simply forgiving debt and/or not pursuing debt can be a very effective way to avoid litigation. Sending a debt to collection when it has not been paid has more than once resulted in a malpractice action as a counter claim. These may or may not be meritorious, but some people have no choice but to come up with some defense to paying the money, and malpractice might be their only option. Not all physicians have control over collections for their time. If, however, you have concern about a case and you know that the patient or their family will have trouble paying the bill, it might be appropriate to relate that concern on to the person who might have influence on whether the bill is collected. Some dogs are best left sleeping.

Sometime in your career, you will probably be dragged into a malpractice case. If you are lucky, you will only be a witness. But if there is any chance that you will become a defendant, you should notify your insurance carrier at the first notice of a potential claim or suit. Insurance coverage is generally beyond the scope of this presentation, but you should be aware that failure to notify your carrier could give your insurance carrier a reason to deny coverage. Although there may be rare exceptions, a claim is what you have your insurance for.

In most states, correspondence and discussions between you and your insurance carrier will be privileged, and not discoverable by the attorneys for the patient. You should clarify this with your carrier, but, once clarified, it will almost always be in your interest to cooperate fully with your insurance carrier and to fully inform them of the circumstances surrounding the claim or the suit.

You would expect to hear this from an attorney, right?

In almost every case, your insurance carrier will provide you with an attorney to defend you in the case. Although the insurance company pays that attorney's bill, he is ethically obligated to treat you as the client. He or she is your attorney and you should cooperate with him or her fully. If asked, take the time to educate the attorney on any medical issues in the case. You are one of the best resources available in your own defense.

You should take an active interest in any litigation in which you are a party. This generally means taking the time to meet with and educate the attorney who is defending you. If you do not put much time and effort into it, you cannot be sure that the attorney will. Cases that are taken for granted occasionally result in adverse verdicts. Remember the case involving a hot cup of coffee at McDonald's?

If you aren’t involved sooner, you will become involved in your case during discovery. Discovery is the formal process, once a lawsuit has been filed, that allows each party the opportunity to learn about the facts of a case. This includes written questions (interrogatories), requests for documents, and a question and answer session usually called a deposition.

The primary potential pitfall at this point will be your deposition. Even if you have been deposed before, you should take the time with your attorney to become adequately prepared for the deposition in the case. Making a poor showing at a deposition can ruin any chance to settle a case that should be settled. What you say can haunt you at trial and in other cases in the future. Flippant remarks, inconsistent statements, and inaccuracies will all encourage a plaintiff to continue their efforts and to try the case against you.

Your objectives at a deposition should be to tell the truth (accuracy may be a less loaded term), to make a good impression, and to get finished and out of there. These objectives are not necessarily shared by the person asking you questions. There are many different ways to prepare for a deposition. We use seven rules which are so simple that anyone could be a good witness--- if they only followed them:

1. Listen to the question.

2. Make sure you understand the question and do not try to answer it if you do not).

3. Ask yourself if you know the answer (if you do not, the answer is "I do not know," and then go to Rule 7).

4. Ask yourself if you are qualified to answer (and do not be afraid or embarrassed to know your limits).

5. Ask yourself if you are speculating or conjecturing (decline to do it).

6. Formulate a brief and accurate answer to the question, then go to Rule 7.

7. Shut up. Answer the question, then wait for the next question. If you do not hear a question, then you have no reason to be talking.

If you follow the above rules, keep eye contact with the attorney asking the question, and are familiar with the facts relating to the case, you should make a good witness.

In most cases you should plan on attending trial. It is a significant advantage to be defending an actual person, as opposed to an empty chair or an institution. Most medical malpractice trials result in a defense verdict. This is at least in part due to the deference that juries still give to doctors. This deference is much stronger if the doctor is present and interested in the case.

At trial, be personable and, to the extent possible, humble. Make eye contact with the jury, but do not dwell on any one juror long enough to make him or her uncomfortable. Remember that when you are answering questions, your job is to communicate with the jury. If you sufficiently educate them about the facts of the case, you should win. If you come off as an arrogant know-it-all, you increase your chances of losing.

This time can be considerable, but it will pale compared to the time commitment for the trial itself. It is usually crucial that the defendant plan to attend virtually the entire trial. This can mean weeks from your practice. Realistically, this likely will be the largest personal cost of participating in the process.

If this process is not bleak enough, trial dates are often not certain, and you can be scheduled for trial and get up to the date of trial to find that there is no courtroom, no judge available, or not enough jurors. The rescheduling of the trial date will be an imposition to all parties, but it usually has the largest personal financial impact on the physician because of the problems of missing and/or scheduling work.

There is relatively little in this paper about the trial itself, especially in contrast to the way law is presented on television. But then, your work may not always much resemble E.R. The most important lesson this paper offers may be that early and thoughtful involvement by you significantly can reduce the chance that you will ever need to go through an actual court-room trial.