Pathologists are among the least sued medical professionals, but ironically, are the medical specialty most likely to lose a case tried to a jury. Pathologists also have the lowest percentage cases dismissed pretrial among all specialties. As a result, it is imperative for pathologists to avoid medical malpractice claims from occurring and stay out of the courthouse altogether.

1. Miraca Life Sciences
The Pathology of Mistakes and How to Avoid Litigation

2. Medical Liability ABC’s

3. Negligence
• Plaintiff MUST Prove All Four of
These In Any Lawsuit
• Duty
• Breach of Duty
• Proximate Cause
• Damages

4. • Every lawsuit turns on the pivotal question – “What Is Standard Of Care?”
• Means pathologist has duty to “to act as an ordinarily reasonably prudent
pathologist under the same or similar circumstances.”
• When a pathologist falls below this minimum standard of care, the pathologist has
breached the duty owed to the patient and is subject to being sued
Standard of Care – Battle of the Experts

5. • The general rule has long been that expert testimony is necessary to
establish causation as to medical conditions outside the common
knowledge and experience of jurors. Jelinek v. Casas, 328 S.W.3d 526,
533 (Tex.2010)
• An expert witness must “explain how and why the negligence proximately
caused the injury.” Id., 328 S.W.3d at 536
• Absence proximate cause, no liability exists even if the pathologist fell
below the standard of care.
Proximate Cause – Battle of the Experts

6. • Three requirements for the admission of expert testimony
• (1) the witness must be qualified;
• (2) the proposed testimony must be scientific knowledge; and
• (3) the testimony must assist the trier of fact to understand the evidence or to
determine a fact in issue. See E.I. du Pont de Nemours and Co., Inc. v.
Robinson, 923 S.W.2d 549, 556 (Tex.1995).
Proximate Cause – Battle of the Experts

7. • Whether the trial court properly excluded expert testimony is subject to an
abuse of discretion standard of review, which means the judge’s decision
was arbitrary, unreasonable, or without regard to guiding rules and
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex.1985).
• “Rule 702's reliability requirement focuses on the principles, research, and
methodology underlying an expert's conclusions.” Exxon Pipeline Co. v.
Zwahr, 88 S.W.3d 623, 629 (Tex.2002); Tex.R.Civ.Evid. 702
Proximate Cause – Battle of the Experts

8. • A plaintiff may recover all damages proximately caused by the
pathologist’s breach of the standard of care
• Good news - Limits on recovery for non-economic damages (ie., Texas Medical
Liability & Insurance Improve Act limits recover to $250,000 for non-economic
damages) (ie., mental anguish, loss of consortium, ec.)
• Bad news – Typically no limits on recovery of economic damages proximately
caused by pathologist negligence (ie., lost wages, past & future medical care, etc.)
Damages

9. MEDICAL ERRORS ARE INEVITABLE

10. “…61% of doctors
55 and older have been sued”
Amednews.com - Posted Sept. 6, 2010.
http://www.ama-assn.org/amednews/2010/09/06/edsa0906.htm
Physician’s Chances of Being Sued

11. • Recent study of anatomic pathologists and clinical laboratory directors
found pathologists believed that errors occurred frequently among
hospitalized patents.
• 3% of patients experience a serious error;
• 12% of patients experience a minor error, and
• 15% of patients experience a near miss.
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Physician’s Chances of Being Sued

12. • The vast majority of pathologist who responded (95.2%) reported having
been involved with an error;
• 43.6% reported involvement with a serious error;
• 69.1% reported involvement with a minor error, and
• 77.6% reported involvement with a near miss
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Physician’s Chances of Being Sued

13. • Respondents disagreed about the causes of errors:
• 55.2% believed were caused by care delivery systems, and
• 44.8% believed were caused by individual error
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Physician’s Chances of Being Sued

14. DISCLOSING THE ERROR

15. • The respondents were near unanimous in their belief that serious errors
should be discussed with colleagues (95.2%), disclosed to patients
(97.0%), and communicated to hospitals (94.6%).
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Communication Is The Key To Avoiding Litigation

16. • Respondents’ beliefs, however, varied as to which less harmful errors
should be disclosed.
• 76.0% believed minor errors should be disclosed to hospital systems
• 72.3% believed minor errors should be disclosed to patients, and
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Communication Is The Key To Avoiding Litigation

17. • Of the respondents, 60.5% believed near misses should be revealed to
hospitals, and
• Only 20.1% thought patients should be informed of near misses
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Communication Is The Key To Avoiding Litigation

18. • First goal of ALL communication should be to minimize risk of litigation
• Do not try to handle potential claim on your own once it arises
• Lawyers should never try to diagnose themselves anymore than doctors
should try to defend themselves in medical malpractice claims
Communication Is The Key To Avoiding Litigation

19. • What do you do when an error gives rise to potential claim
• Report the potential claim to your insurance agent/broker
• Take advantage of pre-claims assistance offered Omnisure
Communication Is The Key To Avoiding Litigation

20. • The key to all communication is to be pro-active.
• Recognizing an issue early is the most important first step.
• Educate yourself & staff on facility’s communications policy
• If you don’t have a written policy, develop one immediately
Communication Is The Key To Avoiding Litigation

21. • Surprisingly, 24.7% (41/166) of respondents did not know whether a
formal error reporting system – such as an incident reporting or patient
safety program – existed within their organization
• More surprising, 28.2% (31/110) affirmatively stated they believed no
formal hospital reporting system was available to them
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Communication Is The Key To Avoiding Litigation

22. • Before communicating about a problem:
• Get your facts right the first time.
• Don’t assume anything.
• Be overly detailed in any written responses.
Communication Is The Key To Avoiding Litigation

23. • Disclose fully to the patient or patient’s family
• Patients and families expect full disclosure from their
physicians
• They believe it is the professional, moral & ethical thing to do
Communication Is The Key To Avoiding Litigation

24. • Of the pathologist surveyed who had disclosed a serious
pathology error directly to a patient, 88.0% reported satisfaction
with the results of the disclosure conversation
• American Journal of Clinical Pathology, 135, 760-765 (2011).
Communication Is The Key To Avoiding Litigation

25. • A 3-step approach to disclose to patient/family recommended:
• Initial Disclosure
• Investigation
• Resolution
Communication Is The Key To Avoiding Litigation

26. • Initial Disclosure:
• Doctors can say "sorry" and “emphasize” without admitting or assigning
fault for the error or occurrence. Be sincere. Don’t speculate.
• This is about empathy and re-establishing trust and communication
with patients and families immediately after an adverse event.
• Chose the right person to disclose.
Communication Is The Key To Avoiding Litigation

27. • Initial Disclosure:
• Never disclose before you have contacted your risk manager,
insurance carrier, and defense attorney.
• Always have a witness present when talking to the patient or family
after an error has occurred, especially if it caused harm to the patient.
Communication Is The Key To Avoiding Litigation

28. • Initial Disclosure:
• Document the disclosure immediately after the disclosure. If you don’t
document it, it didn’t happen.
• Stay professional. Be factual and not emotional.
• Include everything you said, questions asked by the patient/family,
promises made by you
Communication Is The Key To Avoiding Litigation

29. • Initial Disclosure:
• Promise a swift and thorough investigation.
• Should consider taking care of the immediate needs of the
patient/family like food, lodging, counseling, etc.
• The goal is to make sure the patient/family never feels abandoned.
Communication Is The Key To Avoiding Litigation

30. • Investigation:
• Stay in close contact with patient/family throughout process vital.
• Involve outside experts and moving swiftly to alleviate patient/family
fears about a cover-up.
• Treat the patient/family fairly throughout the process.
Communication Is The Key To Avoiding Litigation

31. • Resolution
• Share the results of non-privileged investigation with the
patient/family and their legal counsel
• Patient/family will get the results anyway if litigation proceeds
Communication Is The Key To Avoiding Litigation

32. • If there was a mistake
• Apologize & admit fault
• Explain what happened and how it will be prevented in the future
• Discuss fair, upfront compensation for the injury or death
Communication Is The Key To Avoiding Litigation

33. • If there was no mistake, continue to empathize ("we are sorry
this happened"), but clearly convey not at fault.
• Share the results of investigation (hand over charts and records to
patient/family and their legal counsel) to prove your innocence
• Convey clearly that no settlement will be offered and any lawsuit will
be contested because you did nothing wrong
Communication Is The Key To Avoiding Litigation

34. • State “Apology Law”
• Texas is one of 35 states allowing immunity when medical professional
apologizes to family members without the medical professional’s words
being used against them in court in subsequent lawsuit.
• TEXAS CIVIL PRACTICE & REMEDIES CODE 18.061(1999)
Communication Is The Key To Avoiding Litigation

35. • State “Apology Laws”
• Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland,
Massachusetts, Missouri, Montana, New Hampshire, Nebraska, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, West Virginia, Wyoming,
Communication Is The Key To Avoiding Litigation

36. • Texas “Apology Law”
(a) A court in a civil action may not admit a communication that:
(1) expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an
individual involved in an accident;
(2) is made to the individual or a person related to the individual within the second degree by
consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code; and
(3) is offered to prove liability of the communicator in relation to the individual
Communication Is The Key To Avoiding Litigation

37. • Texas “Apology Law”
(b) In this section, "communication" means:
(1) a statement;
(2) a writing; or
(3) a gesture that conveys a sense of compassion or commiseration emanating
from humane impulses.
Communication Is The Key To Avoiding Litigation

38. • Texas “Apology Law”
(c) Notwithstanding the provisions of Subsections (a) and (b), a
communication, including an excited utterance as defined by Rule
803(2) of the TEXAS RULES OF EVIDENCE, which also includes a
statement or statements concerning negligence or culpable conduct
pertaining to an accident or event, is admissible to prove
Communication Is The Key To Avoiding Litigation

39. LITIGATION ACTION PLAN

40. • Create a “Claim File” at the first sign of a potential claim
(receive a subpoena)
• Gather & preserve all relevant medical records, reports, tests & communications. Do
not engage in “spoliation” of evidence
• You should develop & implement a written documentation retention policy
• Maintaining thorough & consistent documentation systems will prove invaluable when
issues eventually do arise
Communication Is The Key To Avoiding Litigation

41. • What do you do when an error gives rise to potential claim
• Report the potential claim to your insurance agent/broker
• Take advantage of pre-claims assistance offered Omnisure
Communication Is The Key To Avoiding Litigation

42. • Send clear message to everyone involved early:
• You have identified the error;
• You understand what caused the error;
• You are prepared to defend your position that you are not to blame
should a claim or lawsuit arise.
Communication Is The Key To Avoiding Litigation

43. • Respond quickly to combative emails from other medical
professionals involved who appear ready to shift blame
• Respond in writing
• Do not ignore accusations
• Be accurate, decisive & consistent
Communication Is The Key To Avoiding Litigation

44. • Stay professional – always!
• Take the high road whenever possible, especially during the
“Pre-Claim” phase.
• Never forget - everything you do, say, & write may be used in a
subsequent lawsuit.
Communication Is The Key To Avoiding Litigation

45. STAY OUT OF THE COURTHOUSE

46.  Pathologists do not fair well when errors turn into lawsuits
 Pathologists had lowest percentage of claims dismissed before trial
(36.5% v. 54% average)
 Pathologist less likely to settle before trial
(49.6% resolved pre-trial v. 33.3% for internist)
 Pathologists most likely medical specialty to lose a jury case
(7.4% compared to 4.5% average and 2% for anesthesiologists)
Pathology Litigation

47.  Average time to resolve litigated claims
 Claims dismissed by court – 20.4 months
 Claims resolved pre-verdict – 28.5 months
 Claims resolved at trial in favor of defendants – 39 months
 Claims resolved at trial in favor of plaintiffs – 43.5 months
Pathology Litigation