Notes from a Plaintiff’s Attorney: Dealing with malpractice litigation concerns

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.

A recent poll on the physician networking site Sermo asked an interesting question: What stresses you the most about a lawsuit?

1,927 doctors responded. 37% feared losing the case. 33% thought that they would end up second-guessing their abilities. 25% focused on being reported to the National Practitioner Data Bank. 5% thought that their peers would criticize them.

These are all very valid concerns…now, let’s take a look at how you can deal with them.

1. Losing the case

The good news is that if your case is being tracked to trial rather than being settled, then your carrier has determined that you are likely to win. This judgment call is based after reviewing the records, hearing from its experts and getting feedback from the attorney as to how you did during your deposition.

So, start with confidence.

The next step is whether you can move the playing field even further in your direction, either stopping the case altogether or altering it in a way more favorable to you:

• If your attorney has concluded that the plaintiff cannot meet his burden of proof then you can move for Summary Judgment. You will probably have to go through Discovery first. Courts are loathe to deny plaintiffs their day in court and so will grant the plaintiff a chance to develop their case. However, if the plaintiff has already had a full chance to elicit evidence of liability and get an expert lined up and still has not done so, then a judge may conclude that the case against you must be dismissed, either entirely or in part,  because, as a matter of law, it cannot be maintained.

What that means is that the judge is not deciding the case on the merits – he is not saying that you did not cause the plaintiff’s injuries – but is finding that the plaintiff is unable to meet the legal standards to prove his case.  From your point of view, however, it ends the matter in your favor. A win is a win.

• If the plaintiff has not named as a defendant someone whom you believe should have been named, you can move to implead him. This is based on the fact that you could have had an independent cause of action against that person if you were found liable for what that person actually caused. Since courts favor systematic resolution of issues and judges want to reduce docket traffic, the judge will let you bring him into your case rather than forcing you to bring a separate lawsuit.  This will allow the jury to consider the case and your role in it in a more complete perspective and apportion damages accordingly.

Once you are at trial it is all about your connection with the jury. Remember that the litigation wind is at your back because most people – and therefore most jurors – respect doctors.

• Speak as though you were speaking to a patient, explaining medical jargon but not being so simplistic that your listener feels patronized. A useful technique is one used on medical TV shows: first say the medical term and then immediately and smoothly translate it. An example: “The angiogram, which is the dye test that shows the blood vessels, showed an aneurysm – a bulging – of the artery so we put a catheter, which is a very thin tube, into the artery and put in small metal coils through that to let the blood clot around them so that the aneurysm would close up.”

• Use charts and models and even bring in any implements that you used, such as samples of the catheter and the coils. This helps jurors understand your explanation.

• Some defense attorneys recommend turning to face the jury every time you answer a question. But that quickly takes on a robotic quality and jurors actually tend to start disliking it in anticipation. It also makes you focus on an artificial movement. That distracts you from the lawyer’s questions and your answers. More preferably, just sit comfortably and pay attention to the attorney, turning to the jurors at spontaneous intervals to keep them engaged.

• Being natural in your responses is essential during your attorney’s direct examination. You will be prepped beforehand and don’t want that to show, either jumping on a question before it is fully asked or sounding as if are delivering a scripted answer.

• During cross-examination do not let the plaintiff’s attorney bait you, including his saying “Doctor” in an insulting tone. Jurors will see if the lawyer is being provocative, while you, maintaining your composure, will go far in impressing them with your professionalism.

• Ignore what you think you see from individual jurors so that you are thrown off your stride trying to win them over. The juror who is always scowling or shaking his head may be a lost cause – but may also just be concentrating very hard on the complexities of the medical issues.  When you talk, talk to the whole jury. When you look at the jury, don’t fix your gaze on any one of them – they should all feel equally engaged when you explain your case-  because ultimately you want them to act as a group in validating their verdict.

The final issue is remaining realistic about how the trial is going.  You went into it because your carrier expected you to prevail. But things can change. If you cannot win then, apropos of the most prevalent concern in the poll, you want to control the loss.

If your attorney feels that the trial is not going well or you share that same perception, deal with it head-on. Consider options (a) to craft a settlement where you would pay less than the jury is likely to award or (b) propose a high-low agreement where you will have to pay something even if you win but will not have to pay more than an agreed-upon amount if you lose. There are almost always options.

2. Second-guessing yourself

This is actually something that you should be doing. Why? Because it is how you best inform your attorney as he prepares for depositions, deals with your expert, and sets up for trial.

Everything you tell the attorney is privileged. So be honest if there are issues on which your care was questionable.  Your attorney can best prepare a defense – including having both you and the expert address the issue pre-emptively in the light most favorable to you, thereby blunting its use by the plaintiff as a “gotcha!” – This works best if you make clear to him upfront where the deficits in your case lie.

Even if, in retrospect, you realize that you did make an error, remember that it was just one frame out of the movie of your career as a physician.  It should not undermine your confidence if you have learned from it.

3. Reporting to the National Practitioner Data Bank (NPDB)

Ideally, you want to avoid a report at all. This can be done if you self-pay or if your hospital or group covers you in its own payment.

In the self-pay setting a third party is not covering the settlement or award on your behalf, so the payment is not reportable.   In the setting where you are covered the plaintiff receives the total amount but no specific part is apportioned to you within that total and a payment by a facility is not reportable.

If neither of these alternatives is possible then your next step is limiting the harmful effect of a report.

The law that created the NPDB states explicitly that payment to resolve a medical malpractice claim does not create a presumption that malpractice actually occurred.  However, states do receive reports of settlements and verdicts from the NPDB and they may use that information in their own disciplinary procedures.  If you have several small judgments within only a few years or a single large one – and a new judgment could reach your state’s threshold for some type of licensure restriction –  then you want to work with your attorney to craft a settlement that will bring you in under the triggering level.

You also want to exercise your right to file your own statement with the NPDB.  This will then accompany all reports sent to requestors.  Do not, however, draft this yourself because you might be defensive and angry which will potentially open more questions than you close.  Have your attorney do this for you, presenting very coolly why the facts did not support the verdict. This is a powerful tool because this is your chance to explain the case beyond the minimal facts of its outcome.

4. Criticism by peers

Unsurprisingly this was considered the least worrisome aspect of being sued – because doctors tend to support colleagues who are sued.

However, from the point of view of successfully litigating your case, you are still better off keeping matters close to your vest other than any obligation to notify your group or hospital or arrange for time off.

At your deposition you will be asked if you discussed the case with any other physicians. Anyone you did talk to will be a potential witness. If they are deposed or called to testify at trial they may not recall things as you do.  You want the parameters of your case to be contained to ones that your attorney is completely conversant on, with no “wild cards”, and so it is best for you to be able to honestly answer that you did not discuss the case with other physicians.

You also do not want to become grist for the hospital rumor mill.  Once the fact that you are being sued is out because you told commiserating friends you cannot prevent the spread of the news. That news may reach the ears of a competitor or a staff member with a grudge. Either may start telling the story in a way that is very unflattering to you. They may even assist the plaintiff.

Wait until you win to go into all the details – sympathy is good- but congratulations are better!

In summary: If you are involved in a malpractice action you will have valid concerns. But there is a lot that you can do to get the best outcome.

Medical Justice Notes: [Many doctors believe they lose control when they are sued. In some senses, that is true. But, many factors influence the outcome; and there are ways to mitigate the unintended consequences.]