Medical-Legal News

Victor Waters, an internal medicine physician and an attorney, wrote an article for MedPageToday’s KevinMD.com on how to deal with the obstacles of getting sued for malpractice.

Getting sued is like any other difficult situation in life such as not passing a major exam, going through a divorce, or overcoming financial difficulties.  Being sued for medical malpractice can launch sleepless nights, skin outbreaks, and inability to pay attention.  Such emotions can cause a doctor to get fired for not concentrating, or not wanting to go out to enjoy life’s activities though the plaintiff who is filing suit is not physically in front of the defendant to cause any restraint.  A defendant goes through emotions that may hurt his or her family relations and professional life.

Getting sued may be seen positively as a reminder of how short life can be.  A person can realize that the time to spend money and enjoy is now.  A lawsuit can last several years because of the delays in the court system.  It is not something that should intrude into a person’s life every moment.  The defendant still needs a life after the lawsuit so he or she should not destroy everything there is worrying about how the lawsuit will end.

Lawsuits may happen to anyone, and even if it does not, other people may be going through more debilitating situations so a lawsuit may not be so bad in comparison.  Many physicians are sued at some point during their career. When struck with a lawsuit, do not think to settle right away.  Prepare for trial.  The plaintiff has to prove the case and has a harder role.  The defendant does not need to prove anything and just has to counterpunch whatever the plaintiff says.

Become educated about the malpractice process. Do not rely on the attorney to educate because the attorney may not give much information for fear of legal malpractice when the attorney volunteers too much.  The attorney may do the minimum to get the case through to the next stage because the attorney is busy with other cases.  It is up to the defendant to research each stage of the litigation and contribute to the strategy.

When served, make sure the plaintiff has followed proper procedure.  Mistakes in procedure may be a way out.

Look for the people who have always loved and stuck by you.  This is not a time to care about popularity.  There may be some embarrassment because usually people think of a defendant as a wrongdoer, but if the defendant thinks he or she has done nothing wrong, even if a person posts on the Internet the person has been sued, the defendant can feel confident enough to post back and say something like – “Yes – so and so sued me.  If you would like to contribute to my defense…” There will be supporters for the doctor who is not in doubt.

According to WJHG.com, Florida's governor Rick Scott has just signed two controversial bills that get tough on expert witness standards in lawsuits. These bills were discussed in Tallahassee, FL when a child abuse case relating to a man about to be convicted for causing brain damage to a son.  The expert was charged with lying about his credentials.  The case in March 2013 raised issues on using expert witnesses.

According to State Attorney Glenn Hess, the witness was not an expert:  “What we had was a phony and a defense attorney who had the witness until the last minute. Then we couldn't investigate."  The bills Scott signed cracks down on the standards of expert witnesses who testify.

Florida has been following the “Frye” standard for 90 years.  The "expert testimony" legislation puts in play the federal standard known as "Daubert".  Under “Daubert”, an expert must prove qualifications to a judge and peer review.  This may result in court hearings on expert witnesses and opinion testimony because of a three part test:  whether the expert testimony is “based upon sufficient facts or data;” whether it is the “product of reliable principles and methods;” and whether a witness has “applied the principles and methods reliably to the facts of the case.”  Under “Frye”, the courts were not as busy because a person could testify if it was generally accepted science.

The second bill Scott signed is called "Medical Negligence Actions," which requires expert witnesses who testify in medical malpractice cases to specialize in the same field.  Current law allows similar specialties. Expert witness testimony plays an important role in the outcome of a medical malpractice case and there is impact on the way medicine is practiced in Florida.  Under this bill, a personal injury lawyer commented:  "It's going to be much more difficult for plaintiffs, the injured people, to bring their cases in court against the doctors who may be accused of malpractice," according to WJHG.com.  Two local Florida doctors were involved in lobbying for the bill.

The new laws Scott signed go into effect July 1, 2013.

There are some patients who file lawsuits because they want to be compensated for injuries or emotional pains.  They want to rid the case as soon as possible because they are in financial need to use the money for their future healthcare costs.  There are some who are motivated in making an example out of the doctor so other medical providers do not make the same mistake.

The defendant doctor or medical provider may want to get rid of the case as soon as possible because of the costs of defense.  However, the doctor does not want to admit liability when he or she thinks he or she has spoken the truth or done nothing wrong.

Mediation may be the way to resolve errors or unanticipated outcomes.  Sometimes a person who is sued just has to accept the lawsuit because there is no way to tell the other side to walk away.  Mediation is a type of alternative dispute resolution (ADR) for people to speak with each other and try to resolve disputes outside of the courtroom. Doctors who get sued and patients who sue can use ADR techniques throughout a case.

Litigation is not predictable.  ADR allows the parties to come up with a solution on their own rather than a jury. A jury trial may require both parties to put their personal lives on display.  Relationships may be tarnished.  Mediation allows the parties to hear what the other side’s story is to see if a dispute may stem from missing information.

The length of time required to resolve legal claims in a court environment may be twice compared to non-litigated claims. Litigation locks parties into right and wrong positions when each party may have done some wrong, or each party may have some honesty.

Being sued impacts a doctor’s life.  The members of his or her family may get sick out of love or worry.  The doctor may lose productivity from having to respond to court filings, such as reading and approving a motion or making sure his or her family is not mentioned in the lawsuit.  The doctor may suffer anxiety that ruins him or her in finding employment.  There are financial costs from having to pay attorneys and court filings. 

For the patients, when there is a medical mistake, may be confused and angry.  An apology after the mistake may be too late.  Mediation may lead to early settlement when each side is open to disclosure without worry that what they say will be used against them in the lawsuit. A doctor may not want to collaborate and apologize if these actions are seen as an acceptance of personal responsibility for negative outcomes.

Mediation helps direct communication between parties with a neutral third party, a mediator, who facilitates negotiations. The mediator takes time to understand each side to translate to the other side without emotions the concerns of the opposing parties. Doctors get to present the distinction between bad medical practices and bad outcomes.

According to Thomson Reuters, Steven Pegalis, a New York attorney who represents patients in medical malpractice lawsuits is creating a program that, if adopted, would turn closed litigation cases into study tools for physicians and hospitals to better patient safety.

The Plaintiffs' lawyer presented the idea at a panel at New York Law School in April 2013, asking for feedback from New York state judges and medical malpractice experts.

Pegalis proposed the idea, with Dr. Irwin Merkatz, the chair of the department of obstetrics and gynecology at Albert Einstein College of Medicine in New York, to use information collected during a trial such as the facts and procedures in a given case to promote patient safety.  The program has been favorably looked at by several judges, according to Pegalis.

The idea involves a central clearinghouse, such as New York's Office of Court Administration, to house a database of anonymous closed legal cases.  Lawyers for the plaintiff patient and defendant hospital or doctor would meet and draft a description of the relevant facts for a closed case. They would take out any identifying names and replace them with fictitious information to protect the anonymity of individuals involved and deposit the description to the central clearinghouse, which would make the cases available to other physicians and medical facilities for training purposes.

If a database of actual cases were available online, other providers could contribute feedback about their personal experiences, for the sharing of information, reported Thomson Reuters.

The real-life stories may help motivate physicians to be conscientious. The process would require lawyers for both sides along with the judge to make sure the description of the case was not one-sided. 

The negative criticism on the database include a challenge to make sure what is on file with the Office of Court Administration is for training purposes and not litigation.  The idea may raise concerns about confidentiality. Even if the real names are replaced, persons and medical facilities can still be identified by facts, especially if the case received publicity. Publicizing malpractice cases may also encourage individuals to sue.

Pegalis said no other states have implemented a centralized clearinghouse for closed malpractice cases.

In the Los Angeles Lawyer, April 2013 edition, page 13, Scott A. Marks wrote about practice tips for a lawyer to take an expert’s deposition. 

Winning at trial depends on an attorney’s ability to take a deposition of the opposing party’s expert.  In a deposition, an attorney needs to get the expert to express all the opinions, and each fact that supports the opinions the expert intends to testify to at trial. 

For impeachment, a foundational fact underlying an expert’s opinion is not treated the same as the opinion. The law does not give the expert’s opinion the same integrity as it does the information underlying the opinion. The expert’s opinion is no better than the facts used to support the opinion.

During the deposition, it is the attorney's goal to develop the facts for the jury that show the expert’s bias for the retaining party.  The attorney wants to persuade the jury to disregard the expert’s testimony. 

To get to a winning deposition, the lawyer begins with properly noticing the expert’s deposition and demanding the production of the expert’s file.  An expert may need to provide a numerical estimate for the past three years regarding the number of times s/he has been retained by a plaintiff or defendant and the income generated from such expert witness activity.  In California, Evidence Code Section 722(b) provides, “The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.”

During the deposition, the lawyer should ask when the expert was first contacted on a case, who made the contact, what was discussed, and the scope of the assignment.

The attorney should obtain the curriculum vitae, and analyze each portion of the expert’s file which may include depositions, correspondence, time sheets and billing records, and work-up notes.  The attorney should look at whether the expert was provided with all the key and relevant information by the adverse party. If key information is not in the file, the attorney should not emphasize the absence during the deposition.  The attorney does not want to alert the expert and opposing counsel so the attorney can mention the omission during cross-examination at trial.

When an attorney reviews copies of deposition testimony given by the expert in other cases, the attorney should try to impeach the expert by seeing if the expert gives a different answer to the same question in a different deposition. This evidence is discoverable.

The lawyer should check for deficiencies in the expert’s background that would make the expert incompetent to render an expert opinion. In California, Evidence Code Section 801, an expert is allowed to render an opinion only “based on matter (including...special knowledge, skill, experience, training and education)...that reasonably may be relied upon by an expert witness....” If a deficiency exists, in California, the attorney can exclude the expert from testifying at trial by an in limine motion or an Evidence Code Section 402 hearing.

According to Oregon Live, a bill introduced from Oregon offering mediation for medical errors passed the Oregon House in March 2013. Senate Bill 483 reached Gov. John Kitzhaber, and is the outcome of a work group Kitzhaber opened to address issues about medical malpractice lawsuits.

The bill passed the Senate in a 26-3 vote on March 5, 2013. The margin in the house was greater, passing 55-1. Rep. Gene Whisnant, R-Sunriver, was the only person to vote “No.”

Kitzhaber signed the bill into law in late March 2013.  Patients, providers, or health care facilities can get into confidential negotiations in order to prevent a malpractice lawsuit. 

Supporters of the bill think the bill is a positive step toward reducing malpractice claims, but those against the bill say the bill does not do enough to attack medical malpractice claims.  The bill gained support from physicians and trial lawyers, who do not usually agree on medical malpractice.

According to Oregon Live, Kitzhaber praised the bill's passage:  "I committed last year to bring a proposal to the Legislature to ensure that our medical liability system fits within our shared vision of health system transformation," Kitzhaber said.

"This important legislation will help resolve many serious medical events before they go to court by allowing health care providers and patients to have early discussions in a confidential setting," Kitzhaber said in a statement, according to Oregon Live.

The voluntary mediation program will assist to decrease malpractice suits.  Under the bill, the Oregon Patient Safety Commission, a semi-independent state agency created in 2011 will create administrative procedures for notification and mediation. A Resolution of Adverse Health Care Incidents Task Force will evaluate the mediation program.

The bill bans insurers, regulators, licensing boards and providers from requesting the commission, providers or patients for adverse incidents being reported or mediated, and does not allow the use of such information as a way for disciplinary or licensing actions. The bill provides quality review of patient care in some situations.

The Wall Street Journal reported in April 2013 that physicians need to improve their communication skills.  Looking into the patient’s point of view, doctors might want to practice the compliments sandwich where they say something good then input the bad news, and conclude with another good tip.

Communications skills are something patients complain about. Doctors are said to be not polite, or do not listen.  They are said to be busy.  They may not explain something to patients.  The lack of personal skills can damage the quality of care, and increase the risk of malpractice suits.

Medical schools, malpractice insurers, and medical facilities are attempting to assist doctors to better their communications. Doctors are being sent to education programs to learn basics on how to be with a patient. They are being taught to let patients speak uninterrupted, and to be compassionate.

Make a connection with someone is a way to stay out of lawsuits.  Even when someone is hard to deal with, curbing anger may be the way to stay out of legal trouble.  Poor communications may be what is causing rising costs.

Research shows that when physicians do not pay attention to patients, they do not get important health signs and misdiagnose illness. Patients who do not understand what their doctors explain fail to comply with their regimens, leading to preventable hospitalizations, complications and poor results. A breakdown in doctor-patient personal skills is cited in 40% or more of malpractice suits, according to the Wall Street Journal.

In the educational seminars to improve people skills, doctors get lessons from claims, for example, a surgeon who is sued for a failed knee surgery that ends up in amputation since he did not provide the obese patient an opportunity during the informed-consent process to ask questions and did not explain the risk of being overweight.

There is evidence good personal skills assist patients to follow recommended treatments and manage chronic diseases. This improves results in the management of diabetes, hypertension, and cancer.

When doctors are more polite, they ask permission to enter a room, introduce themselves to patients, and put patients at comfort. They are clear about how long an exam or procedure will take, when outcomes will be provided, what they are performing and why, and what patients should expect. The doctors thank the patient and let the patient know it has been enjoyable to help.

When patient satisfaction scores go up, there are fewer malpractice lawsuits.

An editorial piece in the Harvard Crimson offers a compelling narative of issues within the medical system and specifically the difficulty patients have in getting honest answers and information from practitioners when a mistake is made.

Diagnostic errors are the leading cause of successful medical malpractice claims, and are the most common, most costly and most dangerous of medical mistakes, according to new research published in BMJ Quality & Safety.

Researchers analyzed 350,706 paid claims from the National Practitioner Data Bank from 1986 to 2010 and found diagnostic errors represented 28.6 percent of the claims and accounted for the highest proportion of total payments--35.2 percent or $38.8 billion.

Moreover, diagnostic errors resulted in death more than other allegation groups--40.9 percent versus 23.9 percent.

The Medical Injury Compensation Reform Act of 1975 (MICRA) put a cap of $250,000 on pain and suffering damages in cases involving medical malpractice. MICRA became law in 1975 in response to a perceived crisis in the rising cost of premiums for medical malpractice insurance.

MICRA caps compensation for “non-economic” damages. These damages include loss of limbs, severe disfigurement, loss of fertility, continuing pain, and loss of a parent.  In the March 2013 edition of Plaintiff Magazine, Bruce G. Fagel evaluates “Damages in Medical Malpractice Cases under MICRA.”

Damages are part of the initial determination of an attorney on whether to take a medical-malpractice case. MICRA create different plaintiffs in medical malpractice cases. Some plaintiffs suffer only non-economic damages.  These plaintiffs are those in wrongful-death claims, where the heirs have no claim for loss of income from the decedent, such as elderly or children. The injuries of these plaintiffs are limited because there is no significant loss of earnings or medical expenses when a person dies. The issues of negligence and causation are often disputed in wrongful-death claims.  Experts will often debate over a pre-existing condition of the deceased.

Another class of plaintiffs are those in wrongful-death claims of an adult where the heirs, such as a spouse or child, establishes loss of financial support, and the plaintiffs with long-term injury that impacts loss of earnings and future medical care costs. The economic loss to the heirs in a wrongful-death claim puts a medical malpractice case in a different category from a non-economic damages claim. MICRA does not restrict or limit recovery of economic damages.  Obtaining economic damages is not dependent on the testimony of experts who testify such losses are “reasonably certain” to happen in the future. The defense in such cases may contest each element of economic losses, including life expectancy.

To research damages, an attorney can go through data from the insurance industry. Some attorneys decline cases where the plaintiffs do not have much of any remedy. This is because most physicians and medical facilities have liability-insurance policies with duties to defend and indemnify. Even if a defense attorney loses at trial, the indemnity payment is limited, and less than the limit of the insurance. Physicians may be reluctant to provide consent to settle before trial. As to hospitals, they may not want to settle since hospital insurance policies have a self-insured deductible that is generally more than $250,000.  Any settlement must often come from the hospital’s own funds.