In Pennsylvania, Supreme Court Decides It’s Possible to Sue Doctor Decade(s) Later for Med Mal

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In 2003, a patient had liver transplant surgery at UPMC, a Pittsburgh based healthcare system. In a recent 4 to 3 decision, the Pennsylvania Supreme Court decided to throw out the state law barring medical malpractice lawsuits after 7 years. The case lives on.

A little history and background.

In 2002, the Pennsylvania legislature, in response to the then current medical malpractice crisis, enacted assorted tort reforms. It did so to control runaway premium costs and prevent doctors from fleeing the state. One of the reforms put a hard cap on when a claim could be brought. It is called the statute of repose. In Pennsylvania, it was set at seven years. The statute of repose is a bit different from the statute of limitations. The statute of limitations prevents a claim from being brought after X years from date the negligence was discovered or should have been discovered. The statute of repose adds to the statute of limitations. It imposes a hard bar on the number of years from the date of the event triggering the negligence – no matter when the negligence was discovered.

For example, if the statute of limitations is two years and the statute of repose is 4 years, this means that if the patient discovers the negligence 3 years after surgery, then files suit within a week, the suit goes on. Why? The patient just discovered the negligence, so he is within the statute of limitations. Plus, the suit is filed before four years from surgery have elapsed.

A different example from the same state – with the statute of limitations being two years and the statute of repose being 4 years:

(a) if a patient discovers the negligence 5 years after surgery, and files suit the next week; or

(b) if a patient discovers the negligence 2 years after surgery, then waits for 5 years after surgery to file suit –

the legal system delivers the same outcome. The suit is barred by the statute of repose. The defendant prevails.

Back to Pennsylvania.

In 2003, Christopher Yanakos donated a portion of his liver to his mother, Susan Yanakos. Susan suffered from alpha-1 antitrypsin deficiency (AATD). According to the lawsuit, UPMC doctors supposedly tested Christopher for alpha-1 antitrypsin deficiency, but never informed him of the results. He donated a portion of his liver to his mom.

In 2014, Susan learned she still had alpha-1 antitrypsin deficiency. This was discovered after a routine blood test. Christopher had a similar test and learned he also had alpha-1 antitrypsin deficiency. Both Christopher and Susan are still alive.

The family’s attorney Patrick Cavanaugh stated:

Christopher may need a liver transplant in the future, though the procedure may be more difficult because his liver was surgically altered during the lobe donation, according to Cavanaugh.

“The family assumed that if the liver transplant went forward, the doctors would use a healthy liver,” Cavanaugh said. “It was a safe assumption by the family that Christopher didn’t have AATD, but in fact he did. There’s no way the plaintiffs could have found all that out within seven years.”

UPMC defended with the statute of repose, stating the family waited too long to file suit. The lower court and appellate court agreed. The Pennsylvania Supreme Court overruled. That court ruled

the statute of repose unconstitutionally violates the right of access to the courts and lacks any substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.

Apparently six other states have also have had statutes of repose struck down – Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah.

The import is that a med mal case may have a long shelf life well after the medical event transpired. This may have the same effect on premiums for many specialties that the long effective statute of limitations has for ob-gyn physicians. If an infant is injured, they have years to file a claim.

What can be done? Hard to say. One option is binding arbitration under the Federal Arbitration Act (FAA). The FAA is a federal law enacted decades ago. The FAA has withstood the test of time. The US Supreme Court has stated on several occasions it (federal law) trumps state law if the state tries to place restrictions on using arbitration for resolving disputes in health care. The state can still place reasonable restrictions on the formation of the arbitration contract. For example, if the patient is asked to sign an arbitration agreement while on the gurney and propofol is ready to be infused for anesthesia, that would be considered unconscionable and struck down. But, if the patient is given time to review the agreement; it is written in plain language and not buried in 25 other documents; and any restrictions are mutual and not onerous, the arbitration agreement would likely be enforceable.

Could an arbitration agreement be used to bring back a reasonable statute of repose? Possibly. If state courts have ruled that 7 years may be too short and you want 7 years to be the hard cap, the arbitration agreement should “give” the patient something in return; for example, the defendant doctor would pay the first $3k in arbitration fees. Or some other “give.” You would give to get. That is the essence of any bargained-for agreement.

It will be interesting to see if this ruling moves the needle on Pennsylvania professional liability premiums. Rates are already starting to climb. I would not be surprised if the effect is a sharp swing up. If this materializes, then the courts will soon have precisely the information they said argued missing in this case:

“The statute of repose lacks any substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.”

This development reinforces a point we express to our member physicians every day. In the medico-legal space, you must expect the unexpected. And you can be certain aggressive plaintiff attorneys will use this legislation to resurrect meritless claims long thought dead.  

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What do you think about the Supreme Court’s decision? Click here to join the conversation below.


Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

 

What Doctors Get Wrong About Med-Mal Litigation | A Deep Dive with Florida Super Lawyer Chris Schulte, JD

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On this episode of the Medical Liability Minute, Medical Justice Founder and CEO, Jeff Segal, MD, JD, and Florida Super Lawyer, Chris Schulte, JD, discuss what most doctors get wrong about medical malpractice litigation – and what they can do to increase the chances they’ll get their case dismissed or prevail in court. Chris Schulte, JD, is a seasoned medical malpractice defense attorney from Tampa, Florida.

We are privileged to have him as our guest on this episode of the Medical Liability Minute. This episode represents the first part of a two part discussion. The second part will be published in the comings weeks. Listen above or click here to read the podcast transcript…

Episode Transcript

Automatic transcript provided by Happy Scribe. Click here to jump to the post-episode discussion…

Jeff Segal, MD, JD 

Welcome to the Medical Liability Minute. Today, we will be speaking with Chris Schulte. He’s a medical malpractice defense attorney in Florida. So, I would consider him to be one of the good guys. A little bit in the way of background: He received his Bachelor of Science and his law degree from the University of Florida. I believe that makes him a Gator, but I’ll check on that in a minute. Professionally, Chris was selected into membership in the American Board of Trial Advocates – a national association of experienced trial lawyers and judges dedicated to preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. 

And speaking of the Constitution, he’s also a Fellow of the ABOTA Foundation. He’ll probably talk a little bit more about that. He’s actively involved in organizing the Tampa chapter’s annual Otis Lecture to celebrate Constitution Day and inspire high school students to gain an appreciation of the U.S. Constitution. I’m betting even money that he can tell us and recite all the amendments that are out there right now by heart. Finally, he is Board Certified by the National Board of Trial Advocacy and has been selected by his peers for inclusion in the Best Lawyers in America and Florida Trend Magazine’s Legal Elite in the area of Medical Malpractice litigation. He was also named a Florida Super Lawyer by Florida Super Lawyers magazine and one of Tampa Bay’s Top Lawyers by Tampa Bay Business Journal and the Tampa Bay Magazine. It’s a pleasure to have you with us today. Welcome, Chris Schulte.

Chris Schulte, JD 

Thank you, Dr. Segal. I appreciate the opportunity. Looking forward to the conversation we’ll have today. 

Jeff Segal, MD, JD 

We’ve had several clients in common. They are members of our organization, Medical Justice. And you’ve been on the defense end trying to help these members in very challenging situations. And I’d like to open with a discussion about misconceptions. What do doctors think they know about lawsuits, but are entirely wrong about? Or mostly wrong about? 

Chris Schulte, JD 

I think misconceptions vary by specialty. But across all specialties, physicians expect these things to be over and done with “tomorrow.” I’m being a little bit facetious, obviously. But when they receive a claim, they expect one of the following events to occur:  They expect me to make a phone call to the opposing counsel, and then everything will be resolved. The opposing counsel will see the light of day and decide to drop the claim – or at least not press the investigation any further. Alternatively, once the complaint is filed, they expect we’re going to trial in a couple of weeks and the case will be resolved. They expect the process resolves itself within a few months. Unfortunately, it rarely does.

The other large misconception shared across the board is this: Many assume this (the investigation, the trial, etc.) will not be a time intensive process for the physician. 

I’ve been doing this for quite some time – I think I’m on my 26th year – and I grew up with a physician for a father. My dad’s a general surgeon. He’s retired now. So, just by this process, growing up with someone in the medical profession, I’ve learned some of this. But there’s no way in heck that I know the intimate details of medicine. And they expect that I do in a lot of these processes. Case by case, I’m trying to educate myself. Obviously, the best expert that I have – and the most accessible expert that I have – is certainly my client. 

 And I don’t think they anticipate the amount of time they need to invest -unfortunately – assisting me in the creation of a good defense. 

Jeff Segal, MD, JD 

The timing issue – how long it takes for the wheels of justice to grind – is not surprising. It’s often said the wheels of justice grind slowly – almost like a glacier. Most doctors are used to seeing a problem presented before them and it has a crisp solution that can be solved (often quickly) and they’re hoping that will translate into the legal world – meaning that if you could just have all the facts in front of you in short order, the only logical conclusion would be that a particular case has no merit. It must go away.  

But that’s not reality

First of all – all of the facts are never in front of you from the start. There are always messy little details. And it’s rare to find a “perfect case”. Most cases are imperfect, and you have to play the hand that you’re dealt. And I think by virtue of their backgrounds, physicians assume things will move quickly. I agree with you – it is a shock to most doctors – and I would add we have one member who has a case still ongoing related to a medical event that happened in 1999. 

That’s 20 years ago. We’re talking about a case from last century. Now, there are a lot of details in this case. It’s been appealed up and down. So, there are reasons why this is a unique case – but it’s probably not the only outlier, correct? 

Chris Schulte, JD 

1999 strikes me a bit unusual. It certainly sounds like an outlier, but not unbelievable – the oldest case that I have in my case list (supposed to go to trial in October) is a 2010 – 2011 case. October will be the first time that we are going to be in front of the judge in the courthouse. It would be nice if this process were a linear one, but each case is going to be different because each time the players are different, from the physicians to the plaintiffs. And certainly, the attorneys. Each one of them brings a different life experience or a different life into the process that may delay the case. Babies come on board. People get sick. Judges go in and out of the system. Mortgage foreclosure crises bog down the system. Even if all other circumstances are the same, because the people are different, the process will be different. 

It does take time. It is frustrating for all involved, because while I would like to rely on precedent from a prior case experience, and while I can give a general feel and put it in the same kind of bucket, each case is still different – especially from a time standpoint. 

Jeff Segal, MD, JD 

Let’s talk a little about the role of the doctor in educating his or her attorney, as well as educating the jury. You may have had similar cases in the past – for example, cutting the common bile duct is probably not an entirely uncommon case. Or failure to diagnose lung cancer, for example, but by and large while not bringing an entirely blank slate to the table, you’ve got to come up to speed. And the person best positioned to bring you up to speed is the doctor defendant, which does entail spending a lot of time with you – and helping you find the best experts to present the case to a jury. What do you think of that? 

Chris Schulte, JD 

No question about it, Dr. Segal. Part of what I typically do – and I don’t think I’m any different than my colleagues in the area – one of the first things I like to do the minute I get a case is call that doctor and tell him,  “I don’t have time right now to go into detail about the case, because I haven’t seen the records, but I want to let you know that we got your back.”  

I’m going to set up a meeting and come out there to meet the doctor. Face to face, so that they will have a comfort level with me and me with them – so they know that I’m on their side. That we’re on the same team. And then we’ll explain that process in further detail with them to set expectations. For example, make him aware up front that I’m gonna be calling him more regularly than not, because not only is conversing going to help me with the medicine, but it’s also going to help us (the physician and I) establish rapport. He trusts me with the information he’s giving me – and he understands that I understand his needs. The objective is to create trust. When I make a strategic decision regarding his case, I want him to trust my judgement. That way, he can then make an informed decision when the time comes – to settle, to try the case, things along those lines. Obviously, the physician defendant is the most invested in the case. They have the most to lose. I know there are exceptions to the rule, but the physician really wants to help me out – because they understand that if they help me, it’s going to help them. 

Jeff Segal, MD, JD 

You’re on the same team for the most part. Now, in building trust, one of your jobs is to be skeptical and to explain to the doctor upfront that this is not a case about optimal care or ideal care, but it’s a case as to whether the standard of care was breached. Namely, the floor. This is addressing the floor of what is considered reasonable care as opposed to aspirational or optimal care. And it’s not personal if you try and poke holes in the story because ultimately, that is what the other side will be doing. Best to understand all of the facts in a friendly environment (namely the attorney client relationship) than to be surprised either in deposition or in a courtroom. Correct? 

Chris Schulte, JD 

I was just meeting with a physician this morning and preparing him for a deposition tomorrow. It was the first time I met him. And one of things that I typically tell the physician on first meeting them is that as attorneys, particularly defense attorneys, and I don’t think this is unique to me, I tend to look at the world as a Chicken Little sort of character – the sky is falling. I got to anticipate the worst because I’m preparing for the worst-case scenario. I’m obviously hopeful that by thinking the things are grim and dire and that the devil’s advocating the case, I’ll be able to anticipate our opponent’s arguments – and focus on the good things about the care rendered. 

The point you made, Jeff, is very salient. I mean, I think that’s how I learn the medicine best – by poking holes in places where I would see the case being weak from a layperson standpoint. I understand we are trying these cases (at least here in the state of Florida) to individuals whose only requirement is a valid driver’s license – and nothing more. 

And yet understanding, for example, a neurosurgeon who’s been in school for half his life, learning the nuances of neurosurgery, it’s hard for me to believe I’m going to be able to teach this jury the things that this physician knows in a period of six days, seven days, maybe three weeks, and have them understand. 

So, I’ve got to simplify it. Make it understandable, believable, to that 18-year-old guy who drives a car – as opposed to a 55, 60-year-old neurosurgeon who’s been doing this for quite some time. 

Jeff Segal, MD, JD 

And that is the art of storytelling – Hollywood does it all the time. How do you distill a story, keep someone’s attention close to the truth, but still persuade people who will be controlling the fate of one’s outcome? 

I mean, it is a tall order.   

Chris Schulte, JD 

It’s quite a job – keeps you up at night. It is stressful. But at the end of the day, I’m dealing with professionals. 

I like to think that they appreciate what I’m doing and understand that I know that they don’t want to be there. And that’s I think that’s another “problem” – but problem is probably too strong of a term, Dr. Segal, to say that, but I think that’s one of the issues that you want to address. It is likely that physician has some level of distrust in me, because they don’t perceive that I appreciate where they’re coming from. I understand that they don’t want to be sitting across the table from a person wearing a suit and tie, talking about a medical practice that someone is now being critical of, and they’ve devoted their lives to that and numerous years of education. 

It’s a tough thing to get through. But again, that’s why rapport is very important, so once they appreciate that I know, or at least can empathize with them or get very close to empathizing with them, I think that turns the table and they then have a level of trust in the attorney and then can appreciate where I’m coming from as the lawyer in trying to persuade and convince them that sometimes the case is not all about the medicine. If we were trying this case in front of three, four, six, physicians? Totally different presentation, totally different style. 

But I liken my role sometimes to a director in a stage production. “Doc, I need to make sure that you have your role down and you make sure the expert has his role down. You guys don’t trade lines. I’ve got him to say his lines and her to say her lines – just work with me and this is going to be an excellent production.” 

Jeff Segal, MD, JD 

You also have yet another role above and beyond stage producer and attorney, which may also be psychologist, because for many physicians who have never been sued before, it’s not just a run of the mill act where they’ll have a day in court, like if they were in an auto accident. 

It’s also an assault on their reputation and one of the challenges is to remind doctors that even if you made an egregious mistake, for most physicians, it’s a snapshot and not a movie – meaning that your whole life isn’t being assaulted. It’s only one event that’s being assaulted. 

I don’t know that makes it any easier to swallow, but I think just getting that across to doctors early on is somewhat reassuring – even the best of the best will make an occasional mistake. It’s not a career ender. 

Chris Schulte, JD 

Absolutely. Each case is different. Individual circumstances vary. But I have a great deal of respect for the medical community, having been raised by one. I feel like I’m one of them, in a way – I just couldn’t quite get through that one chemistry class. 

Jeff Segal, MD, JD 

You didn’t miss anything, by the way – we never use any of that kind of chemistry. 

Chris Schulte, JD 

But this is, as close as I could get to that practice without putting on scrubs and grabbing the scalpel. The counselor aspect of our profession and being a counselor of the law does go a long way in establishing a rapport with the physician. 

And I think particularly younger – younger being all relativetheir first case out of the box, and let’s say they’re 31 years old, they’ve just been pushed out of their medical school residency, maybe a fellowship, and they get a claim and they don’t perceive there’s going to be any light at the end of the tunnel. “I have been sued, no one’s going to hire me, I’m not going to have a job, they’re going to bankrupt me.” So, through the personal experiences of having litigated these cases, I mean, you must sit down, and not really talk about the case, but address the long-term ramifications. What they may be, what they probably won’t be, and that you don’t need to worry about those ancillary, extraneous things. 

Let’s just focus on the case – the proverb: “How do you eat an 800-pound elephant? One bite at a time.” 

Once we get through it, then we’ll start dealing with the privileging issues, the DataBank, the hospital permits, all the other stuff. 

Jeff Segal, MD, JD 

We had one member who had just finished his residency training and started his first job as a hospitalist on July 1st. He was taking care of a challenging patient and the patient ended up having a bad outcome. Our member was sued. That was his first lawsuit, but he was sued related to an event on his first day on the job, which certainly was demoralizing to him.  I had to walk him off the ledge, explaining, “Hey, look – it’s just bad timing.” Even one in a million events happen in New York ten times a day.” 

He wanted to quit. He didn’t see a future. He believed that this would be the beginning of a long pattern. But when I spoke with him, he was quite a talented physician, a smart diagnostician, a very caring, empathetic individual. I think what happened was like the rest of us, it’s a lifelong learning process and you continue training. I wish I knew everything in the beginning, but I didn’t. And it’s not easy being a hospitalist. They’ve got to be all things to all people in a critical timeline. 

So, tough timing for him. But even if you get sued in the first five years of your practice, I think it can be demoralizing. But it’s likely not going to be a career ender, and I think that’s where you can certainly play a role in reinforcing that message from the very beginning. 

Chris Schulte, JD 

Frequently, you hear the comment that these cases are “just a cost of doing business.” And I get it. I mean, it makes sense practically, but that phrase bends my nose out of shape. I think there’s a different way to look at it. You made the point there’s always going to be a silver lining to anything that we do or don’t do. 

One of the things I always mention to the physicians is, “Hey – you’ve had a claim made. There’s a lawsuit. There’s really nothing we can do about it now.” I mean it’s out of the box. We can’t close the barn doors, shove the horses back in, that sort of thing. Let’s look at this process as a learning experience. There’s something that you did, or something the patient perceives you did that maybe we can correct. It may be a medical issue. This was something they didn’t know, or didn’t understand, or maybe it is a documentation issue. 

Next time, you need to write out the word, or type it, as opposed to using an abbreviation. So, now there’s a positive to be gained in these cases. And that often is half the battle. But a quarter of the battle is to have them, the physician, realize that no one thinks he’s a bad guy. No one thinks that he has horns growing out of his head. He had a day at the office or at the hospital that someone else thinks should have gone a little bit differently – for whatever reason. Let’s fix the difference – or let’s tweak the difference. Remedy the perceived problem and magnify the good.

Jeff Segal, MD, JD 

There are some plaintiff attorneys that didn’t get that memo – good people make mistakes. When a doctor is summoned, the complaint often will read things like, “With wanton disregard for the care of patient ‘X’, Dr. Segal maliciously disregarded safety for personal gain.” 

And when you read something like that, it’s hard not to be defensive. I think you must be defensive. If the complaint were presented a different way, such as: “Even good people make mistakes. And you just had a bad day. But my client has been injured and the right thing to do is to help her move on with her life.” I think it (the complaint) would be perceived differently. It may still be the fight of a lifetime, but I think the tone sets the level of defensiveness from the very beginning. I’m not sure that many plaintiff attorneys have picked up on that. 

I think that if you started with a softer tone, the plaintiff’s attorney may get to the right outcome for their client. They may save everyone a lot of headache. But when you come out swinging, I think everybody should expect that there’s going to be a cage fight. 

Chris Schulte, JD 

It’s the old sugar and vinegar kind of analysis – which is going to attract more? We have a couple attorneys down here, the attorney I’m thinking of has since passed, but he was a good friend of mine who was on the other side of the table. When he filed lawsuits, he filed lawsuits – but when he did, he preferred not to go to court. He preferred arbitration. And obviously, there was some incentive for him to do so. less expensive process for him, quicker resolution, but the way he would sell that to the defense bar and the defense attorneys who took him up on that offer was like this: “Listen, we’ll go into this and I’ll set a ceiling on whatever money I get. I’d rather close this file than keep it open. And there’ll be a decision that’s made, but we’re not going to have a judgment against the doctor and this trial isn’t going to be out in the public.” And I think he recognized that the physicians did not want this laundry aired in the public domain. So, if you put this in a courtroom, anybody can see it. Anybody can get a record of it. 

So, granted, I understand that he had the lawsuit, that there was this arbitration process, but there was also a desire to work with the opposition to make everybody happy. And it was a good relationship. So yes – I think you’re right. If the plaintiff’s attorney comes into it with a different perspective and the defense attorney isn’t combative, the whole process works a little better than it otherwise would. Again, understanding that no one wants to be in the process, but we are in the process – so we must deal with it. 

Jeff Segal, MD, JD 

The other point that’s kind of interesting about the attorney – the plaintiff’s attorney who was supporting arbitration and keeping it out of the public eye. If I heard you correctly, you said his attitude was: “Look, we’ll put a cap on the damages.” If I heard that accurately, the other subtle message sent to the doctor is, “I’m not here to bankrupt you. I’m not here to take your home. I’m just looking for a reasonable amount for my client and we’ll be within policy limits.” And if that’s what he did, that sends another message, namely: “I’m not here to scorch the earth, I’m here to just help my client. I’m not turning you into a cadaver.” 

Chris Schulte, JD 

Absolutely. And he knew the defense attorneys who’d be receptive to that process. These defense attorneys would often have with their clients the same conversation we just had: “He’s not out to take your first-born child, your car, or your 401k. He just wants to kind of make everybody even.” 

And it went a long way – I had a great deal of respect for his methods. 

Jeff Segal, MD, JD 

Let’s talk about process. Because right after you get a summons, one of the first things that will happen are depositions. Depositions of the plaintiff, deposition of the defendant. Why don’t we start by just describing and telling the audience what a deposition is and what it looks like to a doctor. 

Many doctors have already been deposed, so they understand on a visceral level what it means either to be deposed as a witness or as a defendant. But for those who haven’t had the joy of being deposed, why don’t you jump in and describe kind of broadly what the purpose is, and what they can expect? And then we’ll talk about some of the rules that you’ve put together.  

Chris Schulte, JD 

At base, a deposition is a question and answer session for record purposes. 

The purpose of a deposition is to understand the story of the opposition – or of the treating physician, or of the before and after witness, whatever the case. I as the defense attorney can’t go out and talk to plaintiff Susie, because the rules of ethics prohibit that action. And I don’t know what Susie is going to say, what her story really is, I’ve never laid eyes or ears upon her to see what kind of person she is or the extent of her injuries.

And while the plaintiff’s attorney might give me a very good story and nine times out of ten it’s accurate, I got to see that for myself. So, being live and in person and having that person sit at the end or across the table from me does a great deal of good for the case. It helps me understand the person and their claim. In addition, it allows me the opportunity to lock in that testimony. We must assume the case is going to be in front of a jury of six people. So, taking a deposition allows me not only to hear the story, but also lock in that story so that they can’t change that story to suit their advantage later. 

Jeff Segal, MD, JD 

So, that would include preventing surprises. Many some of us grew up watching Perry Mason – or at least Perry Mason reruns. There was always a surprise in the trial that changed the outcome. 

But in fact, that almost never happens – because depositions (to the extent that they occurred before a trial) prevent surprises by locking people into their story. 

Chris Schulte, JD 

Surprises are rare. The surprise comes only if someone changes their testimony. And then you’re surprised – because why would you ever change your testimony? These medical malpractice cases are discovered so deeply and so broadly from the time of filing up until the day of the trial that for the most part, I know what the story is going to be, and I know each person’s role in that case.  I can predict who will say what. 

The only surprise at trial is the presentation. I know the facts, and I know who’s going to be giving the facts. The deposition allows us to lock in that story. So, if a witness testifies the sky is blue one day and orange the next, that casts some shade. More importantly, we can impeach them with their prior deposition testimony. But I look at the deposition as more than a tool for “locking them in” – the most important thing for me when I take depositions is this: I want to see who is going to be sitting on the other side of the table. Will the jury like them? Or will the jury hate them? Because the jury is going to side with the plaintiff they like. Likewise, the plaintiff they dislike will be at a disadvantage. This law applies in equal effect to the defendant.  

So, I want to see who’s going to be the plaintiff in the case, and how are they going to present themselves. And how is a jury going to appreciate them? So, in my mind, that’s really the most important reason for a deposition. 

Jeff Segal, MD, JD 

Speaking of likeability, there certainly are some doctors who are extremely talented technicians – the best of the best – but their communication skills may be sub-par. They speak in nouns and verbs only – or have others do their talking for them. I would imagine that could put them at a disadvantage if they’re talented, but not likable. The question is, how do you make these individuals more appealing? Obviously, they’re not going to do a personality transplant before deposition. How do you prepare these individuals so that maybe they’re less dis-likable? Maybe that’s the right way to put it. 

Chris Schulte, JD 

It’s a good way to put it. I mean, I’m not going to take the spots off a leopard or the stripes off a tiger. I do appreciate that physicians are obviously scientists to some degree, but they are people first. They have devoted their profession to a scientifically directed field. And you’re right.  They speak briefly. They need to get things done. It’s kind of linear. But they are fish out of water in my domain. And I need them to be more personable. So, Dr. Segal, it is kind of funny – you referenced the Perry Mason moment, and I think I watched the secondary ones. And I remember Perry Mason. But who I vividly remember is Marcus Welby. 

Jeff Segal, MD, JD 

Who was likeable, by the way. 

Chris Schulte, JD 

I tell my clients – “I need you to be Marcus Welby. That’s how we need you to come across.” And I’ve had a couple physicians of late that looked at me like I had a third eye growing out of top my head and say, “Who the heck is Marcus Welby?”  

I think it’s all about how they become Marcus Welby – that is, it’s all about how they become more sympathetic in the eyes of the jury. I’ll never make a Marcus Welby. But I can get the doctor closer to that sort of character than they would be naturally. The key is spending time with the doctors, so that they are comfortable in the process. Each physician is going to be different. 

And it depends on the physician – different clients require different things. It’s often a question of what I need to do to make them feel comfortable. Sometimes it’s the trial. I may take him up to the courthouse and have him sit in the chair and say, “Listen – it’s not wired for anything. There’s no button that’s going to launch you into the roof. It’s not going to shock you.” Some of them are completely fine in that setting. Sometimes it’s how you speak to them about the process. It’s how you sit up; it’s how you introduce them. I might show them websites of the person on the other side. 

And again, the medical malpractice world, at least in my community, is a very small network of some friends and some enemies. But for the most part, we are collegial. I sometimes tell my client, “Listen – this guy is not going to bite your head off – and if he makes efforts to bite your head off, I’ll stop the process. No one’s going to come in and put cuffs on you or push you into a jumpsuit or stripes and take you away.” A defense attorney should give the physician a level of comfort in the process. This is simply going to be someone trying to gain information or gather information that may not be otherwise be obtainable. 

And they need the doctor’s cooperation to fill some gaps. Obviously, there are witness preparation coaches and services. Sometimes we utilize those. But I think those are much more the exception rather than the rule, and at least in my personal experience, the most critical matter is time spent with the client. In talking to them and communicating regularly through e-mail. I’ve occasionally put them in a room or a business with a prep coach. Sometimes that doesn’t go so well. 

But, there are some who are receptive to that kind of training. Maybe that’s the first step or the second step, and then I can take over. 

Jeff Segal, MD, JD 

I like the way you describe it as steps, because I know there’s no shortage of lawyers that will give you, “25 Rules on How to Present to a Jury.” And candidly, it’s just too much to remember. And if you do it and don’t internalize the lessons, the doctor’s presentation ends up looking scripted. It looks fake, it looks inauthentic. In one sense, it’s almost like me trying to learn how to dance. If I have to remember 20 steps, all I’m guaranteeing is that my wife is going to make fun of me. I’ll never pick it up. But I think if there are just a few salient points, the important ones for the doctor to remember, then it’s possible to internalize the rules and not end up looking inauthentic and fake. 

The last thing you want to do is look like a robot that’s trying to remember, the 25 rules that were just given to you in terms of the proper amount of time for eye contact, how to disguise your fidgeting, etc. Some of this stuff can’t be helped. You’re just trying to do some element of damage control and hit the salient points – so that they look pretty good, but maybe not perfect. 

Chris Schulte, JD 

In videotape settings, I often tell my clients, male or female, “You’re not George Clooney. And if you don’t like George Clooney, pick your favorite actress or actor. Whoever that is, that’s not you. I don’t need you to be that person – because I need you to be you.” 

Jeff Segal, MD, JD 

Most doctors explain cases every day to patients. They must speak in a common language, for either the patient or the family to understand. They already have the skills. It’s just a matter of tapping into it.  

Chris Schulte, JD 

I try to remind my clients of that fact. Although you are a fish out of water in this legal proceeding, you’re not that far from home. It’s as you said, Dr. Segal. You’re sitting down and explaining medicine to someone who probably knows a lot more about it than the average bear – but at the end of the day, you’re explaining medicine to this attorney, just like you’d explain it to a patient who’s coming in for his first visit with you. You want to describe the medicine in simplistic terms. 

You want to sell yourself on this attorney, just like you’re trying to sell yourself on that patient. Are they going to trust whatever recommendations you’re making? There are parallels that the physicians don’t appreciate until they’re revealed. Maybe they’ll believe it? I hope they believe it – after they’ve been through the process, they often say, “Listen – it really wasn’t all that bad.” 

Jeff Segal, MD, JD 

Yeah – they definitely don’t want to be repeat offenders. Oh, by the way – now that you brought up Marcus Welby, I have to ask you two entirely unfair questions. But you get tremendous props if you get even one of these rightSo, what was the name of Dr. Welby’s partner? And I don’t know if he ever made partner, but he certainly worked with him and rode a motorcycle. And then number two, what was the name of his nurse or admin? 

Chris Schulte, JD 

I watched the reruns, Dr. Segal. I don’t know. You’ve got me there. 

Jeff Segal, MD, JD 

I wonder if was Dr. Kiley? And that Consuela was his nurse 

I may be confusing it with an entirely different show. If that’s the case, I am humiliated by that – but it’ll probably be another 30 years before the opportunity comes up again. I didn’t want to miss it. 

Chris Schulte, JD 

Right. 

Jeff Segal, MD, JD 

All right. Depositions. So, I’ve got a list of suggestions, rules, that sort of thing, that I stole from you (shamelessly) and I use it almost as a Bible, so I’m now asking for forgiveness as opposed to permission to use it. But I honestly have never seen them all laid out in one place and with your permission, if the people listening to this are interested, I’ll pop them in your direction so they can get a copy of this. And honestly – I’ve not seen them all laid out so crisply before, but let’s go through some of them. 

I’ll articulate the rule and let’s spend a little bit of time talking about it -sometimes the rule may be self-explanatory. There’s nothing to be said about it, then we’ll move on. We probably won’t go through all of this, but I just want to hit some of the highlights. 

So, rule number one: “You have no purpose to serve, other than to give the facts as you know them.” 

Chris Schulte, JD 

This is big in hospital settings. And this will go back to the initial point I made, that point being: Doctors want these things done quickly. Some regurgitate the entire case during deposition, hoping the plaintiff’s attorney will hear the whole story and agree there is no case after all.

The problem is that much of this is information the physician normally would not have the benefit of, anyway. For example – medical records get doctors into trouble. Sometimes they don’t know the complete nuances of the case. An example from my work today – one of the issues was the administration of an alternative blood thinning medication for a heparin induced thrombocytopenia case. Well, my doctor’s records didn’t reflect there was a bleeding event, but there was a bleeding event noted in a nursing note. Although, there was also a non-bleeding event noted in the nursing note at the same point in time. 

My physician did not get that information from the nurse. He got it from another physician. I said to this doctor, “Please listen – you have to rely upon the source of your information – the information you are certain is true. You cannot rely on things you heard someone else say.” Stay in your lane, because that way you won’t make any mistakes and you won’t overstep into a fact that may not be a fact at all. 

That is the take home point. My defending client is an actor in this whole stage production. “You have a line. Don’t worry about the other guy remembering his line – we’re going to ensure that happens. You have your role. Take your role – and then we’ll put this puzzle together at the end of the day.” 

Jeff Segal, MD, JD 

So, stay in your lane. The attorney’s job is to put it all together. But the doctor’s role is limited. It may be broad, but it’s not infinite. 

Next rule – never state facts that are beyond your knowledge. In other words, don’t speculate. That’s a good rule. 

Chris Schulte, JD 

Yeah. My perception is that people who have letters behind their name – the proverbial alphabet soup – perceive the need to know something. Or at least feign knowledge of something. Because of what is at risk, they don’t want the other side to think, “This doctor is as dumb as a box of hair.” 

So, if the question is asked, they have the belief, “Well, I’m supposed to know.” It is kind of like, maybe you’re at dinner with friends. And then someone asks you a question unrelated to your specialty – a radiology question, for example – something like, “Hey, can you eyeball this x-ray of mine?”  

You probably know enough about it simply because you’re a physician, to weigh in and comment on it. And that’s all well and good, sitting at dinner with some of your friends. But in a legal proceeding, at least here in the state I practice in, you can’t testify outside your specialty. 

When you start bleeding into somebody else’s specialty, often it’s not permitted and if that specialty isn’t within your medical wheelhouse, and you may misspeak. And depending on the judge, maybe that misstep is gonna make in front of a jury, and then the jury is going to go, “Wow, this guy really does not know his stuff. And if he doesn’t know his stuff now, did he know his stuff when he was treating the plaintiff?” So, that’s a magnification of my earlier point: Stay in your lane – if you don’t know something, it’s perfectly fine to say, “I don’t know.” 

I’d rather you say that, as opposed to trying to establish that you know something you don’t. 

Jeff Segal, MD, JD 

There’s a corollary to that in terms of words to use. I’ve seen this not infrequently where a doctor will say, “I always do X, Y, and Z.” They use the word “always” and I prefer the term “I generally” or “It’s my custom” or “My habit.” The reason – almost nobody does anything “always.” It would be very unusual 

And the minefield you’re running into is that all you need to do is demonstrate one counterfactual and your credibility has been blown. So, there are some words that I try to avoid in life, like the word “always” is one that I try not to use and the word “unfortunately” I also don’t use in life because it usually just demonstrates bad news and people stop listening after you use the word “unfortunately.” That has nothing to do with what we’re talking about, in terms of depositions, but I thought I’d just throw that in there after I threw out Dr. Kiley and Consuela a few minutes ago – as a distraction for you. 

Chris Schulte, JD 

But that statement is not false. You want to stay away from absolutes, because there’s going to be an exception to the absolute. Physicians live in a world of grey. I mean, there’s no black and white to any of this. 

Jeff Segal, MD, JD 

That is such a true statement. The things that are never vague and never muddy, you can count on one hand. There’s almost always some wrench that gets thrown in where you must use judgment – and the judgment can end up with a problem. I’m not a fan of using the word “always” or “never” but suggest softening language just a little bit to conform to the actual practice of medicine. So, let’s move on to the third rule: “Never attempt to explain or justify your answer – you’re there to give the facts as you know them.” Discuss this. 

Chris Schulte, JD 

What I often tell the physicians is there’s basically “five places of comfort” in the quiver of answers that I give them. “Yes,” “no,” “I don’t know,” or “I don’t recall,” and “I don’t remember.” And those are places they can always go back to find an answer. But like I said earlier, I don’t want them to come across as being robotic or monosyllabic. So, occasionally, if you need to explain something, explain it. But don’t elaborate on it. And where I see the justification or the explanation most often is on those hot topics, the critical issues in the case. The reasons why the case is being litigated. And the physician is on her heels because her care is being focused on and criticized. 

They want to explain why they did what they did. Well, I say let the question come to us first before we explain anything. Don’t lay all the cards out on the table. We will have that opportunity. The more that you’re explaining or justifying this kind of act, the more risk you create. It’s kind of like the saying, “He doth protest too much.” If this topic lights a fire under the doctor, perhaps there’s a problem we need to address. Then the opposition is going to start delving into that subject matter even more and chances are if you’re explaining or justifying, you are not staying in your lane. 

Jeff Segal, MD, JD 

This is particularly dangerous when people start speculating when giving estimates. The common question is, “How many times have you testified for a plaintiff?” 

And the answer is, “Well, I don’t know.” And they’ll say, “Well, is it more than 10? Is it more than 20? Is it less than 50?” They’ll keep going until they nail you down. So, if you open up the door with a speculative answer, it’s unlikely the discussion will end before they’ve locked you in with an answer – and then at that point, your answer may be a counterfactual down the road, which then beats up on your credibility. That’s often more the case with experts than with the defendant. 

 But I’m sure it applies to all protagonists in a med mal case. 

Chris Schulte, JD 

If the answer is “I don’t know” then the answer is “I don’t know.” And given your example, I know they’re going to try to whittle it down somewhat and make it finite. But if your first answer out of the box is,” I don’t know,” then your second or third answer and there shouldn’t have to be a fourth answer because the plaintiff’s counsel has probably abused the privilege by that point – but be consistent. 

Jeff Segal, MD, JD 

Asked and answered. That’s where you come in, right? 

Chris Schulte, JD 

Right.   

Jeff Segal, MD, JD 

Listen to your attorney – which often means that you take a pause before you answer. There’s no reason not to think about the question before giving out an utterance. But if your attorney jumps in and objects, pay attention to the objection. You may not have to answer, or if you do, it may be qualified. It’s helpful to view this as a team event as opposed to a soliloquy. 

Chris Schulte, JD 

It is one of things I explain to physicians in the deposition – I think this may be in the paper at some point – is approach this as though you’re dictating a note. Because you literally are – you’re speaking and that court reporter’s taking down everything that’s being said verbatim, whether it’s right or wrong or completely incorrect. Whatever comes out of the lips of the attorneys and the physician is making it to the record. And I would suspect that physicians are still dictating these days into their own transcription systems. They are probably dictating relatively deliberately so the person or machine transcribing can understand what it is that they’re saying. 

Well, if they’re testifying deliberately, and with some degree of paced cadence, they’re thinking about the answer as it’s coming out of their mouth, right? If it’s fast, they’re probably not thinking all through about their answer. So, I say take a couple of seconds before you give an answer because you give me an opportunity to do my job – and protect you from a bad question, and more importantly, protect you from a potentially bad answer, particularly when circumstances are already confusing. 

Jeff Segal, MD, JD 

So, not infrequently a plaintiff’s attorney or any attorney will ask a question that has about four or five sub parts to it. And the better way for you to think about that is hopefully get it reframed so it’s just one question at a time. I think the last thing you want to do is get off balance with a complex question and jump in with an answer before you even understand what they are asking. That’s actually a very good time to pay attention to your attorney and let them object and force the plaintiff attorney to simplify the questions so that it’s more easily answerable. 

Chris Schulte, JD 

An important corollary to that, Dr. Segal, is this: Don’t give a compound answer. 

I understand that you want to get out of here quick, but don’t start at A and give me all the way to Z when the question doesn’t call for half the alphabet. I think the mindset is: If I’m the physician and I tell you my whole story, I’m going to be out of here more quickly. I mean, it’s actually reversed – the reverse is true. I think if you tell the whole story, if I’m taking the deposition, I probably haven’t thought about three quarters of what you just told me, but now I have, and now may I start asking questions about it. 

So, the physician needs to approach the question like so: Short, simple. One topic question. Just like he should give his answer – short and simple. 

Jeff Segal, MD, JD 

The opposite is also true. I think what you’re saying is: Be crisp. But the other thing is, don’t be a jerk to the plaintiff’s attorney. You don’t want to look combative to a jury. 

I know we’re talking about depositions right now, but same behavior would apply  meaning– tell your story, but you don’t need to give the full story. Keep it short, keep it brief, keep it crisp, but don’t come off as being an argumentative jerk that is holding onto every nugget of information and requiring the plaintiff’s attorney to use a crowbar just to extract the most basic of information that you would otherwise divulge anyway. Correct? 

Chris Schulte, JD 

There are several ways to say the word “Yes” or “No.” And there are several ways that it can be looked at as being “This guy’s being a jerk” or “Wow – this guy is being really nice.” And that goes back to the importance of not sounding robotic. I can tell the physician that I need his answer to be “Yes” or “No” or “I don’t know”, etc. But I can’t sit there with my hand up his back and move his mouth. But he, the physician, needs to have some level of judgment in these answers to know which is acceptable and when. 

The best answer explains but doesn’t elaborate. You can draw out a “Yes.” So, it sounds like you’re being polite in trying to be responsive to the question – or you can give a curt, really quick -“YES!” And then you sound like a jerk. I need you to give me the long extended “Yes” and maybe the long extended “No” – but not the short, “Can’t get me out of here fast enough, I don’t want to listen to these questions anymore, you’re bothering me” kind of answers. 

Jeff Segal, MD, JD 

What about the circumstances where a plaintiff attorney will try to nail you down to a “yes” or “no” and that’s all he wants to hear, but the correct answer is something in between the gray zone – and you really do want to get out the truth. 

Chris Schulte, MD, JD 

I think that’s one of those situations where, if I have worked with the physician long enough beforehand and have developed a rapport with him, I know how he’s going to respond to certain questions. If I have developed a good deal of faith with that physician, I’ll give him maybe not the keys to the entire kingdom, but at least a key to the house. I’ll say: “Listen, for those answers that call for a ‘yes’ and maybe a little more, I’m relying on you because we have worked well enough and we worked long enough. I have faith you’re going respond appropriately.” And there are other physicians to whom I say, “If it calls for a ‘yes’ or ‘no’ and you want to explain it, please, just say ‘yes’ or ‘no’ until we get a break. When I get to take my turn and you feel like your story hasn’t been told sufficiently, let me then ask the question. Because then I know what you’re going to say, and I can somewhat control the process.” 

Jeff Segal, MD, JD 

Breaks are actually quite good. And if the attorney says out loud, “Time for a bathroom break”, there’s probably a subliminal message there that should be picked up. 

Chris Schulte, JD 

Absolutely. I tell physicians, “You know, if you have a small bladder to begin with, I wanted to be really, really, really small.” So that the breaks can be more natural than unnatural. And we can sit there and talk about how well they’re doing, or how poorly they’re doing, how we need to get this train back on the tracks, so everything flows. 

Jeff Segal, MD, JD 

Yeah, make sure you load up on coffee and Lasix (a diuretic) beforehand. Here’s one of the most important rules and it’s really just a matter of tone more than anything else – which is do not let the opposing attorney get you angry or excited. I mean, it’s so obvious, but it certainly bears repeating. 

Chris Schulte, JD 

Oh, absolutely. This is probably one of most important things. Obviously, the plaintiff’s attorney would rather resolve the case tomorrow with a resolution, as opposed to trying the case. But there are some attorneys who would rather try the case than settle. It’s those attorneys who are going to try the case – they want to rile you up. Particularly in those depositions where everything is being recorded via video. Rest assured, if they see that doctor blow a gasket, they’ll use that event against him.  

They can get the jury going in the right direction for the plaintiff and the wrong direction for the defendant. So, I tell the physicians, the one thing the plaintiff’s attorney wants to see is this: What’s going to make you sweat? 

They want to see your hot button. Once they find the thing that scares or upsets the doctor, they’re going to stop – because they know what’s going to get this guy at trial. If they want to keep pushing the button, to work up a resolution sooner than later, they’ll keep at it. Now, obviously, from the defense attorney’s standpoint, it’s my job at that point to take the breaks and throw water on the fire so cooler heads will prevail 

But I tell physicians: “You’re going to be irritated the process. I know you’re going to be irritated with the gentleman or woman sitting on the other side of the table. Bite off chunks of tongue, and you can scream to your heart’s content after the deposition is over – but I don’t want you to do it right now, because I need you to establish for them that you are a likeable individual and that you have no reason to tell anything but God’s honest truth and to justify to them and justify to the jury that what you did was reasonable.”

Jeff Segal, MD, JD 

The ultimate irony is that most doctors, as it relates to patient care, are cool under pressure. That is, they know to keep their emotional concerns in check as when they’re taking care of the patient. If they can just translate what they’re comfortable doing as it relates to patient care – and it doesn’t happen all of the time, some people have anger management problems – but most doctors are fairly level headed when it comes to taking care of challenging patients in a challenging environment. Which translates to – don’t take the bait when an attorney tries to rile you up. In the same way you keep emotions in check when interacting with a patient’s family or his nurse – don’t take the bait. 

Your job is to just get through this and be liked by the jury. Tell the truth, do not fabricate anything. And then after the plaintiff’s attorney is finished, you’ll get the chance to resuscitate.  

And your goal is to make sure that the job of resuscitation isn’t impossible. 

Chris Schulte, JD 

Yeah. If they’ve driven the train too far off the rails and put the train in the water, we have a problem. I know money is very important, but at the end of the day, I do explain to my physicians that in your 9 to 5 job, lives are hanging in the balance. Oftentimes in my arena, that’s not the case. It’s a dollar, it’s a check. Two completely different things. I would argue that it’s the doctor’s work that has a lot more importance in the grand scheme of things. Not to say that this (defending the case) isn’t important, but the stress levels that you all deal within your daily lives is eminently greater than what attorneys deal with. 

Jeff Segal, MD, JD 

Part of it’s just keeping it in perspective. I think it’s just an unfamiliar environment for most physicians – particularly when they’re in it for the first time. So, unfamiliarity breeds a level of discomfort. And I think once you settle in and you realize you’re in it for the long haul, then the question is, “How can I help you do the best possible job? How do I get my story told?” And then is it likely or possible that this case may be dismissed, or is a settlement recommended? Why don’t we migrate away from depositions – and by the way, with your permission, I would make some of these rules about depositions available. 

Our listeners can get in touch with us and get that info at www.medicaljustice.com – or we’ll send out an email of this. And by the way, if you forbid me from doing this, I’ll take care of that on the backend.

– Want these points? Write to us – infonews@medicaljustice.com.com.

Chris Schulte, JD

No, I’d welcome that – thank you very much, Dr. Segal.

This concludes part one of Dr. Segal’s conversation with Chris Schulte, JD. Part two will debut in the coming weeks. Subscribe to our podcast feed below to enjoy fast access to our most recent publications.

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Meet Your Hosts

Jeff Segal, MD, JD

Founder & CEO, Medical Justice

Dr. Jeffrey Segal is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Christopher Schulte, JD

Partner at WEEKLEY | SCHULTE | VALDES | MURMAN | TONELLI 

Born in Indianapolis, Indiana, Chris moved to Florida as a young child. He has been named a Florida Super Lawyer by Florida Super Lawyers magazine and one of Tampa Bay’s Top Lawyers by Tampa Bay Business Journal and Tampa Bay Magazine.

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Helpful Hint to Plaintiff’s Attorneys

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Our organization, Medical Justice, advocates for doctors. We don’t apologize for that. It’s difficult to be a physician and there are thousands of threats that make just taking care of patients hard. We are especially opposed to lawyers filing non-meritorious lawsuits against doctors.  

Not all lawsuits against physicians lack merit. Some are well founded.

Judgments or settlements against physicians that are paid by a professional liability carrier are reported to the National Practitioner Data Bank (Data Bank). Physicians perceive such reporting to be a professional scarlet letter.

Doctors fight tooth and nail to avoid being reported to the Data Bank. They do so even when the case has merit. Most plaintiff’s attorneys lack awareness of this dynamic. Plaintiff’s attorneys make their lives more difficult by failing to neutralize the Data Bank variable upfront when they have full and total control of this variable.

Let me explain.

Reports to the Data Bank are triggered by a written demand for money. The demand is made to the physician and paid by his professional liability carrier. If the demand is verbal and no written demand is ever made, that is not reportable to the Data Bank. If the lawyer files a lawsuit, that is a written demand for money. If the lawyer sends a letter stating if you do not roll over and send $100k, he will file a lawsuit, that is a written demand for money.

But, if the lawyer just picks up the phone and makes a verbal demand, and money is paid by your carrier, that is not reportable to the Data Bank.

Will your carrier actually write a check based on a mere phone call? It depends on many things. The merits of the case, the amount requested, are there other defendants, and more.

So, the helpful hint to plaintiff’s attorneys is to first screen their case for merit. If the case does have merit, then start the demand on the phone. No letter. No email. No text message. Nothing in print. The answer may still very well be a resounding no. But it would take the issue of reporting to the Data Bank off the table in the earliest stage of a case; the one point where a plaintiff’s attorney might present an “inviting” offer.

I’m now detecting the venting some physicians are channeling because I just gave a helpful hint to plaintiff’s attorneys. Some are saying, “Segal, what are you doing? Why are you making it easier for a plaintiff’s attorney to collect cash?”

My reply.

These same attorneys are going to seek a remedy for their clients anyway. The only difference is that now they are writing letters and filing lawsuits. If your carrier pays, that payment is reportable to the Data Bank. My helpful hint is this. Pause. Don’t write that letter just yet. Do it verbally. The answer may not change. And they may still later write that letter or file a lawsuit. But they will have created a potential window to negotiate an outcome that is better for the physician. No report to the Data Bank. And if such a report is filed by the carrier, it can be removed down the road. We can assist physicians with making this happen.

Gain access to these strategies – and many more – by joining our organization. Alternatively – read our services report to discover additional benefits of Medical Justice membership.

So, there you have it. Our first helpful hint to plaintiff’s attorneys. Let’s minimize reporting to the Data Bank if it can be done while following the law. 

And while this may be our first helpful hint TO plaintiff’s attorneys, we have received and published helpful hints FROM plaintiff’s attorneys for many years. They have served as guest writers for some time. They’ve offered valuable insights to our readers. We suggest studying the pearls shared below. 

READ: Notes from a Plaintiff’s Attorney: High-low agreements – what they are and how to make them work for you?

READ: Notes from a Plaintiff’s Attorney: Blowing the Whistle 

READ: Notes from a Plaintiff’s Attorney: Legal Issues When Dating Patients 

What do you think of today’s hint? Click here to join this discussion below. 


Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

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Man Bites Dog. Doctor Sues Attorney and Wins $8M in Jury Verdict for Malicious Prosecution.


One Arizona doctor had a good ending to a horrible odyssey.

The urologist, Dr. Trabucco, was sued by an attorney for medical malpractice. Actually, this attorney did not really argue run-of-the-mill professional negligence. He argued the doctor “committed willful and malicious actions upon [the Plaintiff], eventually resulting in the [Plaintiff’s] death.” Underlying the claim was that a laparoscopic nephrectomy should only take 2 hours and the surgery took ~8 hours. This allegation converted a negligence claim into an intentional tort claim.

Dr. Trabucco inevitably moved back to Italy.

The plaintiff’s attorney was also involved in a bankruptcy action against the doctor.

The plaintiff’s attorney was characterized as persisting with the intentional and malicious claims brought in the bankruptcy action to have a better chance at deposing the doctor in the US. So, it was done for tactics.

The intentional and malicious claims took the complaint outside of Dr. Trabucco’s malpractice coverage. As to whether the carrier paid the bills anyway, I do not know.

There’s so much more.

There’s an ex-spouse involved. Bankruptcy proceedings. Complaints filed with the Board of Medicine. Packets of documents sent by “a paralegal” to a referring doctor. Allegations by the “paralegal” had contacted the police to search Dr. Trabucco’s property for a firearm. Release of non-public documents. Referrals drying up.

Allegedly, the “paralegal” wrote a letter to Dr. Trabucco’s parents claiming the doctor was asserting fictitious creditors in his bankruptcy. And that even if the bankruptcy charges were thrown out, perjury charges would be brought.

There’s so much more. It reads like the Book of Job. Just download: https://www.plainsite.org/dockets/download.html?id=208668901&z=18cf7f1b

The original plaintiff (wife of the deceased patient) against the doctor was not even sure why Dr. Trabucco was being sued.

Ultimately, the doctor prevailed. Then he bit back.

Jury awarded the doctor $8M.

What do you think?


Will I Ever Be Sued for Malpractice Horizontal Ad


 

Florida Takes a Step Backward


Let’s go down memory lane.

As the new millennium dawned, Dade and Broward Counties were in the midst of a professional liability crisis. Insurance was not only unavailable. It was unaffordable.

Neurosurgeons were being asked to pay $250k/yr in coverage.

Many policies topped out at $250k in benefits. But, hell, they’d cover you for up to three claims a year plus defense costs.

Doctors were leaving.

Hospitals started allowing physicians to practice without any coverage, virtually unheard of anywhere else in the country.

And modest tort reforms were enacted.

A $500k cap on pain and suffering was imposed. If the patient suffered death or persistent vegetative state, a $1M cap on pain and suffering (more accurately called non-economic damages) applied.

Insurers returned to the state.

Premiums went down. The market stabilized.

In 2007, Susan Kalitan underwent outpatient carpal tunnel surgery. During intubation, her esophagus was injured. She complained of pain, but was sent home after potential cardiac problem was ruled out. The next morning, a neighbor found her unresponsive. She was rushed to the emergency department and taken to the operating room quickly to repair the tear. The patient’s next memory was waking up several weeks later. She had numerous surgeries, a long and extensive rehabilitation, and still has residual symptoms.

We can all agree this was a horrible outcome from a routine carpal tunnel surgery.

The patient sued.

Jury awarded $4.7 in total damages. That included $2M for past pain and suffering and an additional $2M for future pain and suffering.

The noneconomic damages award of $4 million was reduced by close to $2 million by the “[l]imitation on noneconomic damages for negligence of practitioners” under section 766.118(2) and “[l]imitation on noneconomic damages for negligence of nonpractitioner defendants” under section 766.118(3), Florida Statutes (2011). Furthermore, the noneconomic damages award was further reduced by about $1.3 million, as the Hospital’s share of liability was capped at $100,000 by virtue of the hospital’s status as a sovereign entity. § 768.28, Fla. Stat. (2007).

This was a perfect storm. A patient with such serious injuries was being asked to stomach $100k total in non-economic injuries. June 2017, the Florida Supreme Court weighed in.

They ruled the caps on non-economic damages to be unconstitutional.

They concluded that whatever rational bases for tort reforms that might have been relevant over a decade ago, they no longer apply. That crisis has long been over. And it makes little sense for severely injured patients to bear the primary burden when the benefit to the rest of society is so modest. My paraphrase of the Court – not my opinion.

I do not know where this will go. If history is any guide, I expect average payouts of cases to go up. I expect more cases to be filed. I expect premiums to go up. And the cycle may start fresh. We’ll see.

I admit I have a great deal of sympathy for individual patients such as Susan Kalitan. I just do not think it is reasonable to balance the books of her remedy on the backs of a few (namely, physicians) as opposed to amortizing it over the broader range of society.

What do you think?


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What “A Jury of Your Peers” Really Means

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 an attorney licensed to practice in your state.

A surgeon sits at the defense table on the first day of her malpractice trial. Looking at a jury that includes a retired data entry clerk, a postal worker, a college student, a housewife, a motorcycle mechanic and an accountant – but no doctors – she whispers to her attorney, “This is not a jury of my peers!”

An internist stands next to his attorney as the verdict in his malpractice case is read out. A jury that included a kindergarten teacher, a FedEx truck driver, an unemployed man, a hair stylist, a librarian and an airline machinist – but no doctors – has just found substantial liability. He asks his attorney, “Why can’t we appeal? What about my constitutional right to a jury of my peers?”

Both doctors are certain that they are right, but both are actually mistaken about the law.

A “jury of your peers” is one of the least understood legal concepts, so let’s take a look at it.

Like “separation of church and state,” it is a phrase that appears nowhere in the Constitution.

The Constitution addresses juries in just three places: Article II provides that “the trial of all crimes, except in cases of impeachment, shall be by jury”, the 6th Amendment provides for jury trials in criminal cases, and the 7th Amendment preserves the right to a jury in a civil trial with damages above a minimum value.

Who actually sits on those juries is barely touched upon. Here is what the 6th Amendment requires: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.

The key word here is “impartial.”

The general qualifier is that the jury be local, to prevent either side shipping in jurors who would favor their side – while excluding those who best know a given area. But the only qualifier pertaining specifically to the decision-making function of the jury – why the jurors are there – is that it must be impartial.

The Founders could have written in specifics about juror qualifications, including a requirement that they be educated to a certain degree, members of the same profession as the defendant, or have personal knowledge about the matter being tried. They didn’t. They only required that cases proceed on a foothold of fairness.

The answer to what “peer” was intended to mean is any ordinary citizen who can make a fair judgment.

Now, our two defendant doctors might counter that in the 18th century the jury pool was already very limited, mostly to white men who owned property, and so excluded many community members. But, back then, many property-owning white men were not literate at all or barely so. Yet there was no requirement that a juror meet any educational test to sit on any jury, including one that could involve complicated issues.

That a jury should be a sampling of the community is best demonstrated by how it may not be limited. This goes back to the concept that litigants have the right to be judged by a jury using nondiscriminatory criteria and processes, something that cannot occur if there is systematic exclusion of groups that make up a community’s population.

If you ever watched Law and Order you probably already know that during voir dire (the questioning of jurors during jury selection) attorneys cannot use peremptory challenges (challenges to jurors for no reason at all) solely to keep a given race or gender off the jury. But that is the floor and courts are increasingly raising the ceiling.

For example, in a 2010 case in New York, the judge held that a jury of one’s peers means a “broad spectrum of people” in the county. The judge found it was unconstitutional to challenge a juror simply because he was a hunter in a case in which the defendant was accused of shooting another hunter. The defendant claimed the shooting was accidental. Because the prosecutor removed three jurors who hunted from the jury panel, the judge declared a mistrial based on the systematic exclusion of a class of persons that represented the defendant’s peers- not because they were hunters- but because they were community members.

This does not mean that a hunter gets hunters guaranteed on their jury – it means that if hunters are members of the community – they cannot be excluded just because they are hunters.

To our two defendant doctors, this means they are not guaranteed that a surgeon or an internist, or any doctor at all, be seated on their jury. But it also means that if the plaintiff tried to bar all doctors solely because they were doctors that would be impermissible.

Now, you may say “But doctors usually get excluded from medical malpractices cases.”

The answer is that they are not excluded because they are doctors – they are excluded because being doctors presents a complicating issue. Doctors likely honestly state during voir dire that they could not exclude what they already know about medicine from their judgment and base their verdict solely on the facts as presented in the case.

Neither the plaintiff nor the defense wants an “unsworn expert” in the jury room. Neither side wants such an “unsworn expert” spinning their own version of the facts and perceived as an opinion leader by other jurors and. So, the doctor is discharged from jury duty for actual cause, not peremptorily just because he holds a medical degree.

So where does this leave us?

Jury selection now focuses on getting a cross-section of a community. Such members may not be a litigant’s professional or socio-economic “peers.” However, courts have responded to that latter point by holding that a litigant is not entitled to a jury that is composed of his or her own group or one tailored to fit the particular matter to be tried, but only to one capable of being fair.

In summary: A “jury of one’s peers” requires a cross-section of the community capable of hearing the case fairly. Defendants in specialized professions are not guaranteed a panel of similar professionals but members of that profession cannot be excluded solely because of that.

 

*** Medical Justice Notes: [The vast majority of physician defendants would probably want to have a physician serve on their jury. The law does not mandate that outcome, though.]