Initiation of the Lawsuit
When the suit begins is an interesting topic to consider. When did the patient finally decide to pursue legal action? More importantly, what potentially could the physician have done before that point to prevent the suit from happening? Once a suit is filed, it is very hard to “make it go away.” As a result, physicians should do all that they can within reason to manage the risk in these situations to avoid the suit all together.
At some point, the discontented patient visits an attorney; often more than one! The best medical malpractice plaintiff’s attorneys often review dozens of potential cases before choosing 1 that they will represent. As a result, the patient may be turned away from several attorneys before finding 1 who will finally take the case. Although the laws vary by state, the plaintiff’s attorney will often need to obtain an affidavit from an expert witness stating that the care rendered was a breach of duty to the patient. The mandatory qualifications for such expert witness (eg, same specialty? experience with the specific care at issue? geographic location?) vary depending upon the state where the suit is filed. The plaintiff’s attorney will file the lawsuit and seek service on the defendant.
One of the most dramatic and least pleasant occurrences of a medical liability suit is service of the complaint. Many times a process server or a sheriff’s deputy will serve the physician with the complaint of the lawsuit. This may be in the middle of a busy clinic or in the privacy of the physician’s own home. This may be an abusive maneuver by the plaintiff and his or her attorney to humiliate the physician. More professional attorneys will provide the physician with initial notice of the suit in a more respectful manner, and ask the physician to acknowledge the suit without the need for more formal service. Some will even serve the suit directly to the physician’s defense attorneys, if they know who that is from the outset.
When a physician receives service of the complaint, the physician should notify his or her medical liability carrier immediately. Some physicians actually panic after they are served and become withdrawn into denial. Necessary timelines must be met, and the physician’s defense team needs as much time as possible to mount the defense. In addition, untimely notice to the carrier can result in a denial of coverage. After the physician notifies his or her carrier, the insurance carrier will assign an attorney to the physician’s defense.
Friends can get you in trouble. Being sued for medical negligence is a horrible blow to any physician, and self-esteem and confidence take a huge shot during this process. Physicians feel shame and inadequacy. At this point, physicians want to reach out to trusted friends and confidants and spill their side of the story and why this is so unfair. The problem is that everything that a physician says to most people can be displayed in court. Some physicians get to the point that they complain loudly and openly about the ordeal, and the numbers of witnesses that can be called hearing this is overwhelming. Defendant physicians should discuss the matter with their spouse and with their defense team only. Those conversations are privileged and cannot be discovered. The process is awful to most physicians, so they must do everything possible to keep it from getting worse.
Expert Witnesses and Professionalism
The qualifications for serving as an expert witness vary according to the state in which the defendant lives. Although the expert is usually an orthopedic surgeon, that is not always the case. In many jurisdictions, there can be overlap among specialties based upon the care at issue. Sometimes plastic surgeons can testify against a hand surgeon. Neurosurgeons can be called as experts involving spine surgery. Trauma or vascular surgeons may be called as experts involving compartment syndrome and other traumatic soft-tissue injuries. Other specialists can be named as experts as well.
Technically speaking, there is no such thing as a plaintiff or a defense expert witness. Expert witnesses by definition are supposed to testify only on what they believe is the truth in the case regardless of which side recruited them to be witnesses. Unfortunately, too many expert witnesses become extremely biased toward the side that “hired” them. This unfortunate behavior compromises the legal system and shames the medical profession.
In April 2005, the AAOS instituted a Committee on Professionalism to enforce the AAOS standards of professionalism. The Committee comprises 10 members who are charged with overseeing the program (including expert witness issues) and to “conduct objective, substantive review of all professional compliance complaints filed by AAOS fellows and members, and make recommendations to the board of directors.”11 Since 2005, the Committee has reviewed expert testimony from many closed medical liability cases to ensure that its fellows behave in a professional manner.
The AAOS has approved 7 standards of professionalism12 covering the broad range of practice including advertising, relationships with industry, and academic responsibilities. The standards are very clear in terms of how orthopedic surgeons should conduct themselves when serving as expert witnesses. Experts are required to provide impartial testimony that “is nonpartisan, scientifically correct, and clinically accurate.” Specifically, the standards require that experts “shall neither condemn performance that falls within generally accepted practice standards nor endorse or condone performance that falls outside these standards.” The standards also require that the testifying expert must be a true expert on the subject involved in the case, and that no expert should ever testify about a subject on which he or she is not knowledgeable. Lastly, the standards are clear that the expert should never accept compensation that is contingent on the outcome of the litigation. The purposes of the standards and the Committee on Professionalism are to hold orthopedic surgeons accountable for their actions while serving as expert witnesses and to ensure the integrity of the profession.
After the defense attorney has acknowledged receipt of the complaint, the case enters the “discovery” phase. This is the pretrial phase in which information is exchanged between the parties and gathered from nonparties. Discovery can come in many forms, from “interrogatories” to requests for production of documents to depositions.
Interrogatories are written questions (often extremely expansive) that both sides pose to the other as an initial information-gathering step. Answers are also provided in typewritten format, but generally must be affirmed by the physician under oath. The physician’s defense attorney will help the physician address these questions and determine whether certain interrogatories merit a legal objection. The interrogatories can be annoyingly extensive, and the defense attorney will know how to navigate this portion of the case. Remember, the plaintiff also must answer the defendant’s interrogatories.
Likewise, the defending physician probably will receive requests for production of various documents that might be germane to the case. Again, the defense attorneys will assist in responding to the requests and asserting any applicable objections. As with interrogatories, both sides have an obligation to respond to proper document requests.
Physicians may also be served with requests for admissions. When properly used, these are requests for the physician to admit specific facts in the case, thereby narrowing the universe of what the other side must prove.
In addition to responding to written discovery, the physician’s attorney will ask for the physician’s help assembling a list of expert witnesses. These experts are important in that they help determine the standard of care in the case and hopefully demonstrate that the physician did not breach his or her duty to the patient. As a result, physicians must select these witnesses carefully. The proper witnesses in a case can depend upon a number of factors, including their level of familiarity with the physician, their reputation as a provider of the care at issue in the physician’s case, and their history as an expert witness. Sometimes, it can take a while before a physician can find witnesses who can help in his or her defense.
Typically—though not always—depositions will follow the written discovery activities discussed previously. The attorneys on both sides will depose many, if not all, of the pertinent witnesses. Depositions may seem innocuous and a waste of time. The defendant often believes that during the deposition he or she can convince the plaintiff’s attorney that this is all a mistake and that the suit should be dropped. The plaintiff’s attorney may seem bumbling, ineffective, and unprepared, and in fact that may be the case. We cannot emphasize strongly enough that physicians should never assume that this is true! Physicians must always assume that the plaintiff’s attorney knows everything that is going on and exactly what he or she wants the physician to say so the plaintiff’s attorney can use it against the physician later during the trial. Defendant physicians are incapable of winning the lawsuit during deposition, but they can certainly lose it there.
Two absolute essentials to depositions are “be prepared” and “listen actively.” These tenets cannot be overestimated. Failure to do either can result in problems that can eventually cost the case. The defendant physician should be absolutely knowledgeable of the entire medical record. Failure to know what happened and in what time sequence can be disastrous. While the records should be available during the deposition, the defendant physician nonetheless should know important times and dates without having to look them up. The defendant physician should know what each care provider did when he or she interacted with the patient along every crucial step of the patient’s course.
TIP: The Deposition is the Biggest Oral Examination of Your Life
Physicians know the charts backwards and forwards when they sit for oral examinations for their board examinations. Consider the deposition to be the biggest oral examination of your life. Never underestimate the preparation that good plaintiff’s attorneys undertake prior to deposition and trial.
The plaintiff’s attorneys know exactly what they are going to ask, and even worse, they know the short range of answers that the defendant physician can give. As a result, they know the next question and exactly where they are leading the physician.
For that reason, the defendant physician must also actively listen to every question and understand exactly what is being asked. If the physician is unclear about the question, the physician should certainly ask for clarification prior to answering. If the physician answers a question not being asked, the plaintiff’s attorney will point out that the physician is on the wrong track; this can make the physician look evasive, disingenuous, or just ignorant. By answering a question not being asked, the physician can also inadvertently provide the plaintiff’s attorneys with information that they had never considered.
Of course, the same applies to plaintiffs. In an actual deposition of which the author is aware, a plaintiff failed to actively listen to the defense attorney’s question and as a result, the plaintiff inadvertently slipped and mentioned that he took illegal anabolic steroids. For 30 subsequent pages in the deposition, the plaintiff spilled, under oath, his entire lifestyle of obtaining illegal steroids and cycling to gain as much muscle mass as he could. Because the plaintiff brought it up, his attorney could not stop the line of questioning, and the plaintiff subsequently destroyed his integrity by admitting he willfully broke the law.
A key to testifying during depositions is to answer the question as succinctly as possible only after understanding exactly what was asked. The defendant physician should pause slightly before answering in case his or her attorney wishes to object to the question. The defendant physician should not interrupt the plaintiff’s attorney during the question. The defendant physician may not know where the question is actually headed and might answer the wrong thing. The defendant physician should answer the specific question and nothing more. Sometimes plaintiff’s attorneys will stare at the defendant physician, incredulously inferring that his or her answer was ludicrous and suggesting that he or she should elaborate. In these situations, the physician should remain silent and wait for the next question. During the trial, the defendant physician’s attorney will enable the physician to give his or her side of the story. The physician’s deposition by the plaintiff’s attorney is not at that time. Defendant physicians aren’t going to convince the plaintiff’s team that they are great physicians and this is all a mistake. Defendant physicians may convince the plaintiff’s team that they are good witnesses on their own behalf and that the jury will like and trust them. There is a big difference between those two perceptions; the defense team will help elaborate that.
Furthermore, defendant physician answers should be as succinct as possible. The only obligation in the deposition is to answer the questions that are asked. Defendant physicians should not give alternate theories or rambling explanations. If the plaintiff attorney’s question can be answered with a simple “yes” or “no,” then that should be the answer. The defendant physician should not attempt to educate the plaintiff’s attorney. It is the attorney’s job to understand the medicine in the case; the defendant physician should not be the one doing it. Plaintiff’s attorneys often like to ask hypothetical questions. These are dangerous and should be avoided if possible. They also love to have defendant physicians speculate on a point. Defense attorneys will guide their clients in this matter.
TIP: Prepare for Deposition
If you hold the opinion that your deposition is the most important oral examination that you will ever take, why would you do it at the end of the day when you are tired and distracted? Didn’t you at least try to sleep before your oral examination for the boards, and isn’t that the only thing that you focused on that day? Take your deposition seriously. Come prepared. Dress appropriately. Take the day off from work whenever possible.
Sometimes plaintiff’s attorneys will video the defendant physician’s deposition, perhaps to intimidate them or to capture them squirming while answering tough questions. Defendant physicians should dress and look professional. We recommend scheduling defendant physician’s depositions at the defendant’s attorney’s office. The physician’s staff will be less inclined to interrupt if the physician is not “down the hallway in the conference room.” The deposition should be scheduled for when the defendant physician is the brightest; whether that is the morning or the afternoon. The defendant should act professionally and politely throughout. The plaintiff’s attorney is evaluating the defendant physician’s potential as a witness in front of a jury. If the defendant physician is sloppy, loud, arrogant, boastful, and evasive, that will make the plaintiff attorney’s day!
The defendant physician’s curriculum vitae should be complete and accurate, and the defendant physician should know what is in it. It is very important for defendant physicians to know what they have written and presentations that they have delivered. They may be asked about these presentations, and the plaintiff’s attorney may want a copy of them. The plaintiff’s attorneys will also come having read as much of what the defendant physician has published as they possibly can lay their hands on in advance. They will try to use the defendant’s previous words against him or her. If the defendant physician has given previous depositions or testimony at trial, the plaintiff’s attorneys will try to use that information to discredit the defendant physician. For these reasons, it is integral that the defendant physician knows what he or she has said in the past!
Postings on social media sites may also be used against defendant physicians. Physicians should be very careful about their public image. Be assured that plaintiff’s attorneys will dig up as much as possible about defendant physicians.
The concept of settling a lawsuit can be very distasteful. Some defendant physicians feel that this is giving in and only rewards the plaintiff and his or her attorney for this appalling case that they brought against them. Some believe that it only encourages the attorneys to sue again, knowing that they were somewhat successful with less than full effort. In addition, physicians can fear having to explain the settlement to the hospitals where they seek privileges and to their licensing boards. These are understandable concerns but, in most instances, not the true dangers that the physician perceives them to be.
The physician may also feel external pressures to settle a case. For example, the “Three Strikes and You’re Out” law in Florida strongly influenced physicians to settle lawsuits. The law stated that physicians who lost 3 medical negligence lawsuits would then lose their license to practice medicine. As a result, many physicians would settle any borderline case so they wouldn’t end up with a “strike.” Many physicians felt that attorneys would then sue, knowing that they would most likely never have to take the case to trial.
In truth, settling a lawsuit can be the best decision for the physician in some situations. Many times, the best business decision is to save time, money, resources, and hassle by settling the case. The benefits of settling the case must obviously be weighed against the benefits of taking the case to trial. There are numerous factors involved in this decision, and this choice must be made carefully.
By the time the trial finally arrives, many defendant physicians are ready to get the whole ordeal resolved. The months and years that the suit has stressed them have finally come to fruition, and they are often ready to get the situation over with. During the trial, the defendant physician must clear his or her calendar of as many appointments as possible, try to get rest and exercise, and take care of himself or herself. Defendant physicians standing trial are far from their normal element, and they will feel very uncomfortable.
Prior to the trial, the attorneys make a number of motions to determine the specifics of the trial. The subtleties of many of these motions are the province of the defense attorney, and defendant physicians should discuss these matters with the defense team. The attorneys prepare the witnesses and line up the order of the case. They try to predict the opposing counsel’s tactics. They get all of their illustrations ready. They choose the jury.
The defendant physician will have many questions such as, “Do I look at the jury?,” “How do I address opposing counsel?,” “What do I say if they ask me ‘x’?,” and “How do I dress for the courtroom?” The defense attorney will go over all of those issues and prepare the defendant physician as well as possible. Oftentimes, multiple preparation sessions will be necessary in order to cover everything that must be discussed, and in the level of detail needed.
Defendant physicians should be aware that the trial will not necessarily go as they think that it will. Certain preconceived anxieties and fears will not materialize, and they will be replaced by new angsts the defendant physician hasn’t even thought of! The best advice to defendant physicians is to be flexible, prepare for a marathon, clear your schedule of everything else, and try to get plenty of rest. Although it will not seem soon enough, the end of this ordeal is in sight.
Defendant physicians have an advantage in that the jury will generally want to believe them. It is human nature to admire physicians, who have a set of knowledge and skill that most people do not possess. Jurors will want to believe that a physician cannot be negligent, because if it could happen to this plaintiff, it could happen to them as well.
If the defendant physician shows the jury that he or she cares, the jurors will care about what the defendant physician knows. The image of a defendant physician should be of an empathetic, thoughtful, thorough, and highly skilled orthopedic surgeon who helps people improve their quality of life. When the defendant physician takes the stand, he or she should remember to be an educator first. If the defendant is arrogant or unintelligible, he or she will not be effective in educating the jurors and will not be the expert who will win jurors’ trust. Eye contact with the judge and jury is critical. When explaining complex issues and using anatomic models and pictures, the defendant physician should speak to the jury as he or she would with a patient before surgery or in diagnosing a complex condition that may not have good answers. The defendant physician should demonstrate to jurors the complexity of thought he or she employs every day, use terms they can understand, and put his or her cultural competency skills to use.13
A real-life illustration may be of some assistance here. A few years ago, an orthopedic surgeon received a defense verdict after a particularly hard-fought case. Weeks later, a former juror sent her son to see this physician for his own orthopedic injury. That is the impression defendant physicians want the jurors to have: a physician in whom they would trust not only their own well-being, but also that of their most beloved. Achieving this goal goes a very long way to a successful defense at trial.
Unfortunately, after all the motions and testimony and hand-wringing, the proceedings could end in a mistrial because the jury could not reach a unanimous decision. The rules for mistrial vary according to the different states. Typically, however, when there is a mistrial, the 2 sides get to start the whole endeavor over again. This may not be to the defendant physician’s benefit in that the testimony of the defendant and the defendant’s witnesses is now set in the record. The plaintiff’s attorneys may realize that they had a flawed argument and shift tactics. Presentation errors that the plaintiff’s witnesses made in the first trial can be cleaned up for the next trial. On the other hand, the defense team gets to see how the plaintiff’s case went and adjust accordingly as well. Many defendant physicians are wearied by this point and just want to settle. There is a very strong urge to finish the ordeal, but defendant physicians should never make rash and uninformed decisions at this point. They should do all that they can in their power to persevere.
Dealing with the Aftermath
The stress of a medical negligence lawsuit can be overwhelming and can destroy very competent physicians’ careers. They may no longer trust their patients and they may take defensive medicine practices to an extreme. The toll that the medical negligence expends on the medical community is vastly underestimated.
The whole concept of the “second victim” comes out of the fact that as imperfect humans, physicians and other healthcare providers often take a significant personal toll when they blame themselves for the outcome of a perceived medical error—whether or not it was actually their fault. This whole concept was first reported by Wu in 2000.14 “Second victim” syndrome can take the form of depression and withdrawal or far more severe consequences such as suicidal ideations. This overlooked casualty in the medical negligence arena is often among the most tragic and costs society the loss of a good physician and the massive resources expended to produce these providers.
The National Practitioner Data Bank (NPDB) was formed out of the Health Care Quality Improvement Act of 1986 (HCQIA). This NPDB was intended to be a repository of decisions against physicians. The AMA opposed this action because the NPDB is unrestrained by state medical boards and because non-peer-reviewed committees could contribute data. The possibility of an NPDB report often affects how physicians approach claims.
State medical examiner boards may also become involved after malpractice proceedings. Although the rules and policies vary according to the different states, the board may decide that a physician’s license to practice medicine may need to be limited or suspended after a verdict against the physician. The state boards understandably need to protect the public from what they believe is the subpar practice of medicine. The physician, however, realizes that he or she may become the subject of double jeopardy in that he or she continues to be punished for the same incident over and over.