Acs0009 Minimizing Vulnerability To Malpractice Claims


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Acs0009 Minimizing Vulnerability To Malpractice Claims

  1. 1. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 1 9 MINIMIZING VULNERABILITY TO MALPRACTICE CLAIMS Grant H. Fleming, Esq., and Wiley W Souba, M.D., Sc.D., F.A.C.S. . Of all the challenges that surgeons face, perhaps none can be so These requirements state that the expert (1) must be engaged in threatening and draining—on an emotional, personal, and profes- active clinical practice or teaching at the time of trial or must have sional level—as being a defendant in a medical malpractice claim. retired no more than 5 years beforehand, (2) must practice (or This is especially true when the person initiating the claim is the have practiced) in the same subspecialty as the defendant physi- very patient the defendant physician was earnestly trying to help. cian, and (3) must be certified (or have been certified) by the same Our aim in this chapter is to provide the practicing surgeon with board as the defendant physician. Fifth, an additional statute practical information about the genesis and mechanics of mal- enacted around the same time restricted the venue of the trial to practice suits. Application of this knowledge may decrease the like- the county in which the cause of action arose, eliminating the pre- lihood of being named in a malpractice suit or having to endure the vious practice of allowing the trial to be shifted to a more favorable ordeal of a jury trial. In addition, we provide some general guide- venue if the defendant had conducted professional activities in lines on how to proceed if a malpractice suit cannot be avoided or other locales. Finally, Procedural Rule 1042.3 implemented a cer- prevented. tificate of merit requirement. Such a certificate must be signed by the plaintiff’s attorney within 60 days of the filing of the complaint and must specify that a qualified medical expert has reviewed the The Malpractice Climate claim and has signed a written statement indicating that the expert Record verdicts are now commonplace. The state in which one has found the treatment rendered by the defendant physician to be of us (G. H. F.) practices, Pennsylvania, has contributed its share: outside professional standards. the year 2001 saw a $100 million malpractice award in Yet another reform provision implemented mandatory written Philadelphia—the third highest ever in the United States. Just 1 notification to patients affected by serious medical events within 7 month before that award came two others: one for $55 million and days of the occurrence or discovery of the event. Although some another for $49.6 million. In 1998, Philadelphia paid out more physicians have resisted this provision, we strongly believe that open malpractice case settlement awards and jury verdicts than the and prompt communication with patients is a positive practice that, entire state of California. In 1999, there were 33 medical malprac- overall, should tend to reduce rather than promote litigation. tice verdicts in Philadelphia that exceeded $1 million, compared In the few years after these new reforms took effect, most coun- with 19 the previous year. Statewide, by the end of 2001, settle- ties in Pennsylvania experienced a significant reduction in the ments in Pennsylvania had risen 15% to 20%. number of medical malpractice cases filed. According to data The adverse malpractice environment has taken its toll both on released in April 2006 by the Pennsylvania Supreme Court, new insurers, a number of whom have gone into bankruptcy,1 and on filings in 2005 were reduced by as much as 37.5% statewide, com- physicians. Many physicians are leaving Pennsylvania and other pared with the figures for the baseline period from 2000 to 2002. states because the practice of medicine has found itself embroiled We believe that ultimately, these reforms will probably have a sub- in a war with patients, the court system, and political lobby inter- stantial impact on nonspecialist plaintiff’s personal injury attor- ests influenced by trial lawyers who have built powerful law firms neys, who do not usually handle medical malpractice cases,3 but by profiting from the system. they are unlikely to produce a significant and sustained decline in In the past few years, however, some developments have the volume of cases accepted by experienced plaintiff’s medical occurred that may help mitigate this unfavorable situation. To malpractice litigators and their firms. It may be worthwhile to some extent, at least in Pennsylvania, certain limited legislative tort assess the effectiveness of the reforms by undertaking an objective reform provisions implemented in 2003 may have had the effect of study of the cases filed since the legislative and procedural reforms reducing the number of claims made against physicians, though it were implemented to determine whether the reduced number of is still too soon to draw any definitive conclusions.2 First, a 200% postreform cases contain a percentage of meritless claims. Clearly, cap was placed on punitive damages, and health care providers the reduction in the number of filings, in and of itself, will benefit who were vicariously liable were given immunity from punitive physicians and their insurers if the trend can be sustained. damages unless they knew of and permitted the conduct giving rise to the damages. Second, the so-called collateral source rule, which used to allow plaintiffs to “double dip” by claiming at trial past Personal Issues for the Defendant Physician medical expenses that in fact had already been paid by insurance, How physicians cope personally with being a defendant in a was modified so that this practice would no longer be permitted in medical malpractice suit varies, but a number of factors come to medical malpractice trials.Third, it was stipulated that future med- bear on the amount of stress that litigation inflicts. These factors ical expenses exceeding $100,000 would now have to be specifi- include the physician’s previous exposure to litigation claims, cally broken down by the jury award on a year-by-year basis, but degree of familiarity with the legal system and the litigation these expenses would not be paid until the year in which the process, and previous experience testifying in the courtroom or in expenses were actually incurred. Fourth, tougher qualification depositions; the size of the claim as measured by the seriousness of requirements were imposed on expert witnesses testifying at trials. the alleged injury; and the presence or absence of a claim for puni-
  2. 2. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 2 tive damages—which, of course, are not insured by professional ison of adverse outcomes, with physicians grouped according to liability policies. Some physicians experience a sense of profound frequency of medical malpractice claims against them.8 The isolation when they are first named in a suit, particularly when ser- authors found no relationship between the number of adverse out- vice of suit papers is accompanied by the standard instruction comes and the frequency of claims experienced. In addition, other from their risk management office or legal counsel not to discuss research has shown that no relationship exists between the pres- the case with anyone. ence or absence of claims history and traditional indicators of Allegations of negligence or substandard care, in and of them- physician ability, such as board certification, status, prestige of selves, are bitter pills to swallow, but they are all the more painful medical school attended, country of medical school, medical when they are accompanied with a claim for punitive damages. school ranking, or solo practice.9,10 An examination of the files of Such claims, announced in the formal complaint, are then typi- the National Practitioners Data Base, which lists those on whose cally followed promptly with a grim letter to the defendant physi- behalf either jury awards or monetary settlements were paid, cian from the insurers involved, reminding the physician that there would reveal the names of some of the most highly regarded physi- is no coverage for punitive damages awarded. The allegations in cians in the United States. the plaintiff’s complaint necessary to support a claim for punitive damages are hurtful and sometimes outrageous; the physician is accused of willful, reckless, and wanton behavior bordering on How Can Malpractice Claims Be Reduced? intent to injure the plaintiff.The awards sought in such cases reach Clearly, some suits cannot be prevented. When catastrophic far beyond fair compensation for the injured plaintiff. Rather, injuries follow surgery or treatment, the emotional impact of the punitive damages are calculated to punish the defendant physi- tragedy, coupled with overwhelming economic pressures, can cre- cian—the perceived wrongdoer—and to serve as public sanctions. ate an environment in which a claim is assured. On the other The physician against whom punitive damages are sought then hand, not all adverse outcomes from treatment result in claims. undergoes pretrial discovery, sometimes shortly after suit is filed. Why is it that some patients and families sue for adverse outcomes This process involves requests (interrogatories) for detailed and some do not? Why do some patients sue for adverse outcomes accounting of personal assets that might be available to be that are expected and that occur in the context of high-quality attached in the event of a judgment in the plaintiff’s favor. care? The answers to those questions typically have to do with Whether or not punitive damages are sought, it is difficult for physician-patient relationships rather than with professional skill. most physicians to regard being harpooned by a medical malprac- It has become increasingly clear that surgeons can reduce the tice claim as merely a cost of doing business, and for many, the likelihood of litigation by adopting a few key habits and practices arduous and seemingly never-ending nature of the claim is dis- with their patients and their patients’ families.These include build- tracting and potentially debilitating. ing trust through open communication, making effective use of informed consent, keeping accurate and complete medical records, and educating office staff. Who Brings Medical Malpractice Claims, and Who Are the Targets? COMMUNICATION AND INTERPERSONAL SKILLS IN THE PHYSICIAN-PATIENT RELATIONSHIP THE PLAINTIFFS Although advancing medical technology has elevated patients’ Despite the self-aggrandizing proclamations of trial lawyer asso- level of expectation regarding treatment outcome, easy public ciations, professional negligence has little to do with whether access to medical information on the Internet has encouraged claims are brought for patient injuries. Nor has any research estab- patients to become partners with their physicians in their own lished that a higher incidence of medical malpractice litigation has care. Experience with juries over the past few decades continues to brought about a better quality of medical care delivery. Brennan support the belief that in general, laypersons have a high regard for and colleagues have shown that there is no relationship between physicians and a deep respect for their superior level of knowledge the occurrence of adverse events and the assertion of claims, nor and training. At the same time, patients expect and deserve to is there any association between adverse events and negligent or receive intelligible and thorough explanations from their physi- substandard care.4 These authors did, however, find a relationship cians regarding their diagnosis, their treatment plan, and the risks between the degree of disability and the payment of claims. and benefits of their treatment. Even when the disease process is Only a small fraction of patients who are injured through sub- beyond the physician’s control, the physician can still create an standard care or treatment actually bring claims or suits.5 Localio environment for effective communication with the patient.Years of and colleagues concluded that although 1% of hospitalized listening to patients and their family members tell about their patients sustain a significant injury as a result of negligence, fewer experiences at depositions and trials has confirmed for us that the than 2% of these patients initiate a malpractice claim.6 Other quality of communication and trust between physician and patient authors have found that only 2% to 4% of patients injured through is the most important contributing factor in the patient’s decision negligence file claims, yet five to six times as many patients who to prosecute a medical malpractice suit. sustained injuries that are not legally compensable also file mal- Several researchers have analyzed physician-patient communi- practice claims.7 cation and its relationship to claims for damages for alleged pro- fessional negligence. Beckman and colleagues studied 45 deposi- THE DEFENDANTS tion transcripts of plaintiffs in settled malpractice suits, focusing The experience one of us (G.H.F.) has acquired in defending on the question of why these plaintiffs decided to bring malprac- malpractice claims for more than three decades at the same teach- tice actions.11 These authors concluded that the process of care, ing hospital vouches for the contention that those targeted in med- rather than the adverse outcome, determined the decision to bring ical malpractice suits are not the incompetent, the unskilled, or the the claim.They found that 71% of the depositions revealed prob- careless. Entman and colleagues studied the quality of care ren- lems with physician-patient communication in four major cate- dered to 446 obstetric patients and performed a blinded compar- gories: (1) perceived unavailability (“you never knew where the
  3. 3. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 3 doctor was,” “you asked for a doctor and no one came,” “no one 1. Content. Convey medical information in descriptive terms that returned our calls”); (2) devaluing of the patient’s or the family’s patients can understand, using illustrations, sketches, and dia- views (e.g., perceived insensitivity to cultural or socioeconomic dif- grams. Ask about the response to the therapeutic regimen. ferences); (3) poor delivery of medical information (e.g., lack of Provide counseling and instruction if no improvement is informed consent, failure to keep patients informed during care, or observed. Inform the patient about specific steps in the exami- failure to explain why a complication occurred); and (4) failure to nation or treatment plan. understand the patient’s perspective. 2. Process. Ask patients whether they understand what they have Levinson and colleagues studied specific communication behav- been told; check the understanding by listening to the patient iors associated with malpractice history.12 Although they did not after providing an explanation. Demonstrate respect for any discover a relationship between those two factors in the surgeons cultural or socioeconomic differences that may be impeding the they studied, they found that primary care physicians who had no patient’s understanding. claims filed against them used more statements of orientation (i.e., 3. Emotional affect. Demonstrate concern and understanding of they educated patients about what to expect), used humor more the patient’s complaints. Express empathy; use humor where with their patients, and employed communication techniques appropriate. Demonstrate awareness of the patient’s occupa- designed to solicit their patients’ level of understanding and opin- tion, social circumstances, hobbies, or interests. ions (i.e., they encouraged patients to provide verbal feedback). 4. Follow-up. Return telephone calls. Explain the protocol for sub- Hickson and colleagues studied specific factors that led patients stitute or resident coverage, and introduce patients to other per- to file malpractice claims after perinatal injuries by surveying sonnel who may be following their care. During longer hospi- patients whose claims had been closed after litigation.13 talizations, keep the patient and the family informed of the Dissatisfaction with physician-patient communication was a signif- patient’s progress or treatment plan. Keep the referring physi- icant factor: 13% of the sample believed that their physicians cian promptly informed by providing treatment or discharge would not listen, 32% felt that their physicians did not talk open- summaries. In the event of a patient’s death, meet with the fam- ly, 48% believed that their physicians had deliberately misled them, ily to review and explain autopsy findings. and 70% indicated that their physicians had not warned them Further guidelines apply when an adverse outcome occurs. In about long-term developmental problems. the hospital setting, prompt disclosure of an untoward or unex- In our own experience with defending malpractice suits, we have pected event that causes injury or harm is mandated by the Joint seen instances in which attending physicians who had developed a Commission on the Accreditation of Healthcare Organizations positive rapport with their patients were not named in a suit, (JCAHO). JCAHO standards require disclosure of unanticipated whereas other physicians involved in the patient’s care were outcomes “whenever those outcomes differ significantly from the named. In suits that progressed through pretrial discovery, we have anticipated outcome.”The responsibility to communicate lies with observed instances in which patients were willing to drop from the both the attending physician and, in the case of a complication suit physicians with whom they had a good rapport, leaving in the incident to surgery, the person accountable for securing consent suit others with whom they had a less positive relationship—or for the procedure. with whom they had had no communication. Patients apparently When possible, it may be advisable to invite other responsible made these decisions without regard to the extent of each defen- caregivers to take part in the discussion of the adverse event with dant’s factual involvement in the case. the patient and the family. Consideration should also be given to A component of the motivation to sue may be simply an unsat- inviting other persons who may be sources of support for the isfactory or incomplete explanation of how and why an adverse patient and could benefit from the disclosure. During the discus- outcome occurred. Patients who remain uninformed often assume sion, express regret for the occurrence, without ascribing blame, the worst—that their physician is uncomfortable talking about the fault, or neglect to oneself or any other caregiver. Describe the complication because he or she made a mistake, was careless, or is decisions that led to the adverse event, including those in which the hiding something. In our experience, malpractice plaintiffs have patient participated. Explain and outline the course of events, sometimes claimed that when they sat through the process of jury using factual, nonspeculative, nontechnical language, without education during the trial, it was the first time they received any admitting fault or liability or ascribing blame to anyone else. State explanation of the complication for which they had brought suit. the nature of the mistake or error if one was made, and highlight When children suffer injuries, parents often seek desperately to the expected consequences and prognosis, if known. Outline the avoid blaming themselves and so may attempt to transfer the plan of corrective action with respect to the patient. In the event responsibility to the health care providers. It is therefore critical that certain information is unknown at the time of the discussion that after a complication or adverse event arises in a pediatric case, (e.g., the etiology of the condition, suspected equipment malfunc- whenever possible the physician should speak openly with the par- tion in the absence of controlled testing, or pending laboratory test ents about inappropriate feelings of guilt. The discussion should results), tell the patient and family that such information is cur- cover possible or known causes or mechanisms of the injury or rently unknown and offer to share the information with them when death that are independent of any care rendered by the parents, it becomes available. including prenatal care or home care of a chronically ill child. Similarly, the physician should make a point of explaining to adult INFORMED CONSENT patients and their families how and why adverse conditions arose, Effective informed consent can reduce the risk of litigation. independent of any possible deficiencies in the quality of care Informed consent is merely an extension of good communication received at home or in patient compliance. Patients and their fam- practices, albeit one that is mandated by law.The tort of informed ilies are keenly sensitive to unintended inferences that blame for consent is derived from the concept of battery—for example, the bad outcome rests with them. unauthorized touching. Patients are deemed not to have consent- The principles of good communication are the same, whether ed to a procedure unless they have been advised of all the risks an adverse event has occurred or not.They include the following: involved in it and all the alternatives to it. In most jurisdictions, the
  4. 4. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 4 standard is objective rather than subjective. In other words, the is exceedingly rare that physicians can actually recall the informed risks and alternatives that must be disclosed are those that a “rea- consent discussion in question at the time of the suit. However, the sonable patient, in similar circumstances”—not necessarily the content of the communication can be proved more reliably plaintiff—would regard as material to the decision whether to through custom and habit than through direct recollection, partic- undergo the surgery in question. With procedures for which the ularly when the elements of the discussion are corroborated with a statistical incidence of risks has been published or is known, the comprehensive but clear form signed by the patient. physician has a duty to quantify for the patient the likelihood of the In some cases, physicians encourage the showing of a patient risk being realized. If the patient’s particular condition or situation education video that explains the intended procedure; such a video is such that the likelihood of the risk occurring is higher than aver- should also communicate the risks of the procedure. The use of age, the physician has the duty to so inform the patient. educational videos can provide additional evidence to support the Many physicians ignore another critical element in the required defense that the patient gave informed consent. Each version of the informed consent discussions: describing the range of reasonable video should be labeled with the dates when it was routinely used, alternative procedures or modalities other than the procedure in and it should not be discarded when it is replaced with updated question that are available to the patient. The hazard that such versions.The patient’s chart should reflect that the patient watched omissions entail is illustrated by a case in which the physician per- the video and had no questions after a review of its contents. formed a transesophageal balloon dilatation of the esophagus to The physician who will perform the procedure, not the nurse or address achalasia that had not responded to conservative medical resident who will assist at it, has the duty to secure the patient’s therapy.The risk of esophageal perforation was disclosed as part of consent. Information provided by other health care providers can, informed consent, and the procedure was performed totally with- however, be used by the defense as evidence. in the standard of care, but the patient suffered perforation of the DOCUMENTATION esophagus with serious permanent and long-term disability. Although an alternative approach, via thoracotomy, was known to Along with effective communication techniques and informed be followed at other institutions, it was not used at the defendant consent protocols, good documentation practices can minimize a hospital, and the informed consent discussion therefore did not surgeon’s risk of becoming a defendant in a medical malpractice include the surgical alternative as a disclosed option. The defen- suit, or at least provide a more effective defense if litigation is com- dants were forced to settle the case for a significant amount of menced. Although the purpose of keeping medical records is to money, even though there had been no negligence and the patient provide subsequent caregivers with important information relevant acknowledged that the risk of esophageal perforation had been to the patient’s condition and treatment, in the context of litigation, thoroughly disclosed. A breach of informed consent was easily medical records are used to demonstrate what care was or was not established because one of the reasonable alternatives was not dis- rendered. A standard question that plaintiffs’ attorneys ask defen- closed to the patient. The argument that a reasonable person dants at pretrial depositions is whether the defendant agrees with would probably have rejected the surgical alternative had it been the adage, “If it is not documented, it wasn’t done.”Time and time disclosed was not a valid defense; nondisclosure of a reasonable again, otherwise defensible cases are compromised because of alternative, in and of itself, created strict liability. inadequate documentation, such as failure to document an order, Some surgeons regard the informed consent discussion as an the time an order was given, a critical telephone call from the inconvenient imposition on their time. However, the few minutes patient or patient’s family, a critical informal consultation, or criti- needed for this discussion pales in comparison with the time need- cal symptoms reported by a patient during the course of an exam- ed to defend a lawsuit involving a breach of informed consent, ination or clinic visit. either as the central claim or as an ancillary one. In addition, given As noted [see The Malpractice Climate, above], various tort pro- that the surgeon’s personal interaction with a patient may be sig- visions have been enacted with the intention of upgrading the qual- nificantly limited in comparison with that of the primary care ity of expert witnesses. Better-qualified witnesses will generally be physician, obstetrician, gynecologist, or medical specialist, the more objective, authoritative, and credible than less well qualified informed consent discussion presents an important opportunity witnesses. Such witnesses may nonetheless be influenced, some- for the surgeon to develop rapport and a positive relationship with times to the defendant physician’s detriment, by the quality of the the patient. Such rapport can be invaluable in the event of a later documentation provided. On one hand, if the chart is well docu- complication or adverse outcome. An effective informed consent mented and the case is defensible, many reputable experts will be discussion may reduce the likelihood of a claim for a particular loath to give an opinion stating that substandard care was provid- adverse outcome if the patient remembers that the risk of its occur- ed. On the other hand, absence of adequate documentation some- rence was disclosed and discussed. times prejudices expert case reviewers in favor of the plaintiff, even Informed consent is not the consent form.The form is merely a though subsequent deposition testimony may provide a cogent and piece of evidence documenting that informed consent occurred; defensible explanation for how and why the adverse event or com- the critical factor is the content of the discussion. For the form to plication occurred. be effective, it must cogently summarize the disclosures in a man- It is crucial to ensure that telephone conversations are docu- ner that makes it difficult for the patient later to refute, in a “he mented. Cases have been saved in the courtroom simply because said, she said” controversy, the version of the discussion that the a resident who received a call jotted a short note of the patient’s physician may be rendering in the courtroom under oath. complaint and the advice given and pasted it in the patient’s chart. An effective discussion of informed consent based on custom All appointments, cancellations of appointments, and reasons for and habit is essential because of the slow pace of the legal system. cancellations should be logged. If printed images of bedside ultra- In most jurisdictions, the statute of limitations for bringing claims sound scans are relevant, the printed copy should be stapled and involving adult patients is 2 years. By the time the defendant physi- placed into the progress notes of the patient’s chart. If the surgeon cian’s pretrial deposition is taken, another 1 to 3 years may have provided the patient with a sketch to help explain an operative pro- elapsed, and after that, even more time passes before the conversa- cedure, the sketch should be placed in the patient’s chart, with the tion will have to be relayed under oath if the claim goes to trial. It date written on it. In one case involving an informed consent issue,
  5. 5. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 5 the defense was able to produce a sketch of the operation that the patient, but extra attention should be paid to documentation, surgeon had made on the reverse side of a lab report in the missed appointments, telephone instructions given, and informed patient’s chart, thereby refuting the patient’s contention that no consent. Paranoia is neither necessary nor helpful in dealing with explanation of the procedure had ever been given. If equipment these patients, but care should be taken to inform the staff of any malfunction was involved in an adverse outcome, such as a death concerns. Litigious patients may feel short-changed by the medical in which a postmortem examination was conducted, the surgeon system because of past adverse experience with the medical deliv- should insist that the risk management office provide a secure ery system or economic pressures exacerbated by the expense of place to store the specimen or equipment in question for later test- testing and treatment, and when they are not given satisfactory ing or use as a trial exhibit. If an anomalous condition contributed explanations for a poor outcome or a therapeutic failure, they may to an adverse outcome in a fatal case, efforts should be made to seek to elicit derogatory statements about another physician’s ensure that the pathologist at least photographs the abnormality at advice or treatment. Accordingly, whereas dialogue and open dis- the time of the autopsy if the specimen is not to be preserved for cussion of adverse outcomes with patients are essential, it is impor- later use. tant to steer clear of criticizing another physician or health care Whenever an untoward outcome or event occurs, the event provider. The proper forum for constructive criticism of other should be documented in the chart in a purely factual manner, health care professionals with a view toward improvement is the without resort to expressions of opinion or suggestions that other peer review system, not a discussion with the patient or the health care providers are to blame. If additional relevant informa- patient’s family. If the critique is made in the context of peer tion subsequently becomes available, it can be helpful to make a review, the proceedings are shielded from discovery in litigation. late entry in the chart, with the time of the entry appropriately With the enormous attention currently focused on minimizing documented. health care expenditures, virtually all surgeons feel pressured to If one realizes that an error in documentation has been made in shorten the duration of hospitalization and decrease the use of the patient’s chart (e.g., inaccurate information recorded), it is vital diagnostic tests and medications. Such feelings, though complete- not to remove the page and start over and not to scratch out, write ly understandable, should never be allowed to influence patient over, or “white out” the mistake.The appropriate way of handling care decisions. Juries persuaded that treatment was withheld or such an error is to draw a single line through the inaccurate infor- delayed because of lack of medical insurance have been known to mation, record the correct information, and initial and date the award substantial punitive damages. In cases where denial of cov- amendment. Clearly, a medical record should never be altered in erage by the health care plan is a particular problem, it can often an attempt to cover something up. In the event of a suit, this act be helpful to talk directly with the medical director. could lead to the loss of an otherwise defensible case. EDUCATING AND INFORMING OFFICE STAFF What Should Surgeons Do If Sued? More than ever before, every practicing surgeon must recognize SETTLING THE CLAIM VERSUS TRYING THE CASE that his or her office staff must also be well informed and well edu- cated about malpractice issues. The Health Insurance Portability Although many professional liability policies require the consent and Accountability Act (HIPAA) of 1996, which began taking of the insured before a settlement offer can be made, it still is usu- effect in 2003, regulates the use of an individual’s protected health ally possible for the insurer to settle the claim over the objection of information and, for the first time, authorizes specific federal the insured physician after review and consideration of the object- penalties if a patient’s rights are violated. All practice employees ing physician’s argument against settlement. Nevertheless, the must be trained in compliance with the law and must know how preferences of the defendant physician typically exert a heavy influ- to deal with the privacy requirements stated in the law. ence on the insurer’s decision to try or settle the case. Defense In-service training of office staff is pivotal to reducing the risk of attorneys’ recommendations to the insurer are often affected by the being sued. All office personnel should be well informed and edu- degree of rapport they enjoy with their physician client, the client’s cated on issues of confidentiality, including how to answer the conviction (or lack of conviction) regarding whether he or she met phone, what kinds of conversations are inappropriate, and the giv- the standard of care, and the level of the client’s commitment to ing out of medical information. It is also critical to maintain good defending the case in a jury trial. relations with patients; many avoidable lawsuits have arisen simply From the insurer’s standpoint, the decision to settle a case is because a member of the physician’s office staff was rude to a guided by a number of factors, such as (1) the strength and quali- patient on the phone or because the patient waited too long to see ty of the defense expert who has evaluated whether the standard of the doctor without an explanation. Whenever patients or family care has been met, (2) the reputation and ability of the plaintiff’s members call or write to express displeasure with service they trial counsel, (3) the likely verdict potential and the risk of an received—whether that service was provided by the surgeon, the adverse verdict, (4) the general competence and demeanor of the resident, the clinic staff, or the nursing team—courtesy and com- defendant physician, and, of course, (5) the costs of mounting a mon sense decree that the dissatisfied customers should be con- defense, which include defense attorney fees, expert witness fees, tacted and allowed to vocalize their complaints, either over the tele- expenses for daily transcripts during trial, technology costs associ- phone or in person.Willingness to listen to these persons indicates ated with the preparation and trial of the case, and the likelihood a genuine interest in improving the delivery of patient care and of an extended and expensive appeal by the losing party after the may well prevent some claims. verdict. Insurers also consider the potentially beneficial longer- range impact of earning a reputation for defending their clients ADDITIONAL POINTERS against all meritless claims, regardless of cost, on the assumption Especially in the current malpractice climate, it is important to that strong and successful defenses against such claims will dis- be vigilant for patients who tend to be inordinately dissatisfied, to courage future meritless claims against the physicians they insure. complain unreasonably, or to exhibit rudeness. Such patients From the standpoint of an insured physician who is a named should receive the same high-quality medical care as any other defendant, the risk of an adverse verdict is, or should be, an impor-
  6. 6. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 6 tant consideration, as should the emotional wear and tear incurred a confidential summary of the case prepared; this summary should in preparing for and enduring the stresses of a trial; the time spent be addressed only to legal counsel, with no copies to anyone. If the away from work and family; the degree to which a settlement, as media are involved at the outset of the suit, under no circum- opposed to a successful verdict, may affect future insurance pre- stances should defendants attempt to be spokespersons on their miums; and the extent to which a favorable jury verdict will result own behalf; this task should be left to others who are better in clearing of the physician’s good name and restoration of his or equipped to determine how much information to provide to the her professional reputation. How these considerations affect the media about the controversy. decision between settlement and trial is strongly influenced by the It is advisable to find out the name of the defense lawyer assigned psychological makeup of the defendant physician: a physician with to the case and arrange an initial meeting to familiarize him or her a strong emotional support structure who also has a personality with the relevant medical issues. Any medical research done to capable of standing up to the emotional stress and rigors of the assist the defendant and legal counsel with the issues should be car- courtroom is more suited to participation in a trial than a physician ried out with the understanding that the research is performed in with a more fragile personality who is intolerant of criticism and the context of communication with counsel: all independent distrustful of the jury and the legal system. A physician who favors research that is conducted for the defendant’s own edification, going to trial over settling the claim should be willing to become rather than for communication with counsel, is discoverable by the fully invested in preparing the case for trial, should have a high plaintiff. It is vital to take whatever time is necessary to educate the degree of confidence in the preparation and skills of the defense defense attorney on the medical issues involved so that the attorney attorney trying the case, and should be willing to spend the time can then gather more information effectively. The defendant can required to read the voluminous pretrial discovery depositions, recommend and discuss with counsel certain fact-gathering tasks medical literature, and medical records associated with the case. to be done by counsel on the defendant’s behalf. Both defendant Most physicians with whom we have associated would rather and counsel can begin thinking about whom to engage as an out- have professional negligence claims judged by other physicians side expert to assist in identifying weak points or issues in the case than by laypersons from all walks of life and of different education before the defendant submits to a deposition by the plaintiff’s levels. These attitudes have their roots in the 19th century, when lawyer. Once defendant and counsel have agreed on an expert, the judicial system was struggling to resolve the claims of injured however, only counsel should approach or contact the expert. patients against a backdrop of inconsistent medical standards, rel- atively unsophisticated scientific knowledge and information tech- nology, and antiquated means of communicating medical concepts How Should Surgeons Comport Themselves as Defendants to laypersons, many of whom were illiterate and lacked what would or Witnesses in a Courtroom Trial? currently be considered a minimal education. Today, the situation Although the experience of a medical malpractice trial is not an is different: jurors with college degrees are the norm, rather than inevitability for all practicing physicians, it is, at the least, a signifi- the exception, in many venues, and the expanded use of technolo- cant possibility for the majority. Accordingly, we believe it may be gy in the courtroom enables illustrations, concepts, and documen- helpful to provide some practical pointers for use in situations tation to be displayed clearly and effectively while witnesses discuss where the claim is held to have merit, no settlement has been and interpret them for the jury. Accordingly, it is likely that at least arrived at, and the case goes to trial.These pointers are designed to some of the traditional suspicion of lay juries may be misplaced. As give a general idea of what to expect at a trial, as well as to suggest Struve has noted, “Juries’ liability determinations in malpractice strategies for more effectively, credibly, and persuasively presenting cases are not random; rather, studies find some degree of correla- the defense of a medical case to a jury of laypersons charged with tion between jury outcomes and medical reviewers’ findings of the duty to arrive at a verdict. negligence and causation.”3 The statistics released for the year Many witnesses who have to testify in court feel frightened or 2005 demonstrate that in Pennsylvania, more than 80% of the ver- intimidated as they approach the witness stand to be sworn in. dicts in malpractice trials courts continue to be rendered in favor Sometimes, the truth that the witness is attempting to tell is dis- of the defendant.14 torted because of this fear and because of the antics of the oppos- It is noteworthy that medical malpractice cases seem to account ing lawyer. The perception and judgment of the jurors who listen for a far higher share of tort trials than other types of tort actions to the witness are affected not only by what the witness says but do. For example, in Philadelphia County in 1996, malpractice also by the manner in which the testimony is given, the degree to accounted for only 3% of tort case filings but 18.7% of tort trials. which the witness is acclimated to the facts of the case, and the To make the comparison in another way, about one of every eight demeanor of the witness on and off the witness stand. Rightly or malpractice filings went to trial, compared with about one of every wrongly, how the witness testifies is often more critical than what 100 automobile accident filings.15 he or she actually says. The following advice has been compiled from personal profes- INITIAL MEASURES FOR ASSISTING IN THE DEFENSE sional experience in defending medical malpractice cases in jury First, all of the relevant records, phone logs and messages, and trials for more than three decades. Some of the points made may e-mail correspondence or other notes should be assembled, and seem obvious—simple matters of common sense. Such points are every effort should be made to cooperate fully with the claims rep- still worth making, however, because it surprisingly often happens resentative of the insurer and the representative of the hospital risk that intelligent, experienced, and articulate witnesses abandon management team if the hospital is involved in the case. Under no their habits of good judgment and solid common sense the circumstances should any records be altered, amended, or dis- moment they walk into a courtroom.We believe that the guidelines carded when a suit is initiated.The facts of the case should not be we suggest will give any physician testifying in a trial a better discussed with any colleagues until legal counsel has become opportunity to present the facts in a fair and convincing light. involved, because anyone who takes part in such discussions may These guidelines are applicable both to physicians who are actual be asked to repeat the substance of the conversation at the time of defendants in a medical malpractice trial and to those who are pretrial depositions. The available records should be reviewed and merely witnesses.
  7. 7. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 7 GENERAL PREPARATION would like your jurors to have and developing a consensus on what Most persons who have rarely or never been a witness in a trial responses to questions should be considered favorable and what are nervous and anxious at the thought of testifying in front of a responses should not. You should feel free to offer suggestions to jury. A major reason for this reaction is the fear that one’s words your counsel regarding questions to ask the jurors, even if the ques- will be twisted by the opposing lawyer or that the intended testi- tions you think of may seem obvious. In some instances, your mony will be unfairly distorted or misrepresented as a result of counsel may retain jury consultants to assist in developing voir dire deceptively phrased trick questions.You can overcome, or at least questions aimed at identifying positive or adverse jurors. In the last alleviate, this nervousness and anxiety by preparing painstakingly analysis, jurors are generally selected on the basis of nothing more and familiarizing yourself with the case well before the trial, as than a hunch. Most of the time, decisions made during the selec- well as by concentrating on and paying close attention to the con- tion process are based mainly on a “gut feeling” derived from tent of any questions posed by opposing counsel during your observing the jurors as they react to the lawyer’s questions during testimony. voir dire. Defense counsel should discuss the key case issues with you in detail before your appearance, but obviously, not all questions and During Lawyers’ Opening Statements answers can be (or should be) rehearsed. For your part, you should After the jury is empaneled, each side has the opportunity to make sure that you are thoroughly familiar with the portions of the make an opening statement to the jury before the evidence is actu- medical records for which you are responsible (either directly or in ally presented. An effective opening statement can go a long way a supervisory capacity).You should also read and study your pre- toward persuading the jury to accept one side’s view of the case, trial deposition transcript to prevent inconsistencies in your trial even though the jury is cautioned by the judge to withhold judg- testimony. If possible, you should review the pretrial depositions of ment until all of the evidence is heard. If you are not a named party other witnesses in the case. Stenographers are now able to gener- to the case but merely a witness, you should still try to be present ate word index transcripts that allow you to search the index of during the opening statements; doing so will help you quickly another witness’s deposition, quickly find all locations in that depo- develop a feel for the case and will alert you to the issues you may sition where the witness or the examiner mentions your name, and face when you testify on the witness stand a few days later. In some then focus on any portion of the testimony that has a bearing on instances, however, you may not have this option. Certain trial you or your involvement in the case. Currently available trial pre- judges may allow opposing counsel to obtain a sequestering order sentation software also allows such searches to be linked with cor- preventing witnesses (but not parties) from being present during responding segments of the video portion of a videotaped deposi- the opening statements or during the testimony of other witnesses. tion, with the written transcript appearing below the video as the witness testifies. This approach can be an extremely effective tool During Presentation of Evidence for a trial lawyer during cross-examination, in that it facilitates Because the burden of proof is on the plaintiff, the plaintiff’s demonstration of inconsistencies in a witness’s statements through case commences first, after the opening statements. Sometimes, verbal and visual comparison of trial testimony with a pretrial the first witness called is not the plaintiff but the defendant (or one deposition. of the defendants, if the suit was brought against multiple physi- Unless a sequestering order has been issued, you should try, if cians). Plaintiffs’ lawyers like to use this tactic early in the case, possible, to come to court to watch other witnesses testify before when the witnesses are likely to be more nervous and have not yet you. This will not only familiarize you with the process of cross- had time to observe and warm up to the pace and facts of the case. examination but also help you feel more comfortable with the By applying this tactic, they hope to take advantage of the initial courtroom environment as a whole by the time you testify. Of unfamiliarity with the testifying process, sometimes attempting to course, if you are a named defendant in the case, you will have been strong-arm a nervous or inexperienced witness or manipulate his there almost all of the time during all phases of the trial anyway. or her testimony. Sometimes, all the plaintiff’s attorney is trying to accomplish is simply to make the witness appear unsettled, evasive, BEHAVIOR AT TRIAL or defensive so as to prejudice the jury against that witness. The upside of being called in the plaintiff’s case as one of the During Jury Selection first witnesses is that it gives you an excellent opportunity to pre- If you are a named defendant, it is very important that you be sent the defense’s side before the plaintiff’s points are firmly estab- present during jury selection, a process known as voir dire. It is at lished in the jurors’ minds. Although the questions asked in this sit- this time that you will first be introduced to the jurors who will be uation are, of course, under the control of the plaintiff’s lawyer, hearing the case. Some information is elicited from the potential they may—depending on how narrowly they are phrased—yield jurors before the selection process actually takes place. You will you an opening through which you can drive home the central have an opportunity to communicate with your counsel if you have points of the defense at the outset of the case. any preferences or concerns about any individual potential juror. When being questioned by opposing counsel, you must pay Each party to the case generally has a limited number of so-called extremely close attention to how the questions posed to you are peremptory challenges. This means that your counsel can elimi- phrased and whether improper assumptions and inaccurate state- nate a preset number of potential jurors for virtually any reason. In ments of fact are loaded into these questions before you answer. If addition, each party has an unlimited number of so-called chal- the question contains an improper predicate or attempts to make lenges for cause, which involve making the argument that a partic- you assume facts that are contested, you must point this out before ular potential juror cannot sit on the case fairly and impartially. If you attempt to answer the question. At the same time, you must the reasons underlying this argument are demonstrated to the sat- never be evasive or fail to give a truthful and direct answer if the isfaction of the judge during the questioning of the juror, the chal- questions are straightforward, fair, and simple. lenge is upheld; if not, it is denied. After you have been questioned by the plaintiff’s attorney to Ideally, before the selection process begins, you and your coun- establish the basic facts the plaintiff needs to prove, your defense sel should spend some time discussing the qualities your team counsel may cross-examine you in an effort to make, through your
  8. 8. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 8 testimony, as many key points for the defense as the judge will then project your answers in a strong voice and look the examining allow, even to the extent of assisting the defense in introducing attorney in the eye when questioned, but without appearing hos- documents or exhibits that the jury has not seen before. The tile in any way. If you do not know the answer to a question, the defense thereby has a chance to place its case before the jury before best response is simply to say so.You will get into difficulty if you the plaintiffs rest their case. If all of the key points for the defense continually try to outsmart the cross-examiner by trying to antici- can be established, it may not be necessary to call you back to the pate where the questioning is headed or giving equivocal or face- witness stand later, during the defense’s formal presentation of its tious answers. case after the plaintiff rests.The decision as to whether you will be When being examined by the plaintiff’s attorney, you should try recalled during the presentation of the defense is usually made later not to look at your own counsel at the defense table while the ques- in the trial, well after the defense has formally opened its case. tion is being asked, while you are answering it, or right after you Defense counsel should prepare you for this possibility in advance have given your answer. Looking back at the defense lawyers with of the trial so that you are aware of the critical defense points that whom you have associated is a natural impulse, especially when the should be made in your subsequent testimony. courtroom scene is strange to you and you feel a need for reassur- Many defense attorneys elect to defer this type of pro-defense ance or approval. However, this impulse should be restrained cross-examination to the formal presentation of the defense, the because it suggests to the jury that you are unsure about your tes- rationale being that it may be best to hold the strong points of the timony or, even worse, that the testimony might never have been defense in reserve until after the plaintiff has taken his or her “best yours to begin with.You should look at the defense attorneys only shots.” Our preference, however, is to seize the advantage afforded when you are being questioned by them. by primacy, so that the jury hears a hard-hitting version of the When medical concepts must be explained to a jury, it is impor- defense before the plaintiff’s version of events can be firmly estab- tant to avoid medical jargon. “Cause” is universally understood; lished in their minds.You should discuss this issue with your attor- “etiology” is not. Generally speaking, most medical concepts can ney in advance of the trial and decide on the strategy that works be clearly explained with nonmedical words, basic illustrations, or best for you. even crude diagrams. However, the complexity level of your testi- mony and the extent to which you use technical medical language DEMEANOR AS A WITNESS may vary depending on the point in the trial at which your testi- mony is given. For example, if you are the last witness testifying General Recommendations and the jury has already heard three physicians explain a particu- Numerous trial lawyers, acting for plaintiffs and defendants lar medical issue, you risk insulting the jurors if you talk to them as alike, have observed that it is better to have a poor case with a client if they are in a seventh grade health class; you are better served by whom the jury likes than a good case with a client whom the jury using language that matches their current acquired understanding dislikes. The particular challenge for the physician acting as a wit- of the issue in question. You must use your own judgment as to ness is to avoid the appearance of being disengaged, aloof, or, what level of medical explanation is appropriate at any given point worse, arrogant. Therefore, when testifying on the witness stand, in the trial. you should always convey an attitude of caring, concern and Most jurors are keenly interested in medical science and human respect for the patient who is the subject of the suit. As difficult as physiology. If you can respond to this interest by testifying in a clear it may be, you should always be polite and respectful toward the and accurate manner, without condescension, you have a better opposing counsel who will be cross-examining you. If, as some- chance of ensuring that the technical aspects of your testimony are times occurs, the opposing attorney treats you with disrespect or remembered and understood long after you leave the witness ridicule, you should not respond by becoming defensive or overly stand. aggressive. When you do not take the bait, the jury will invariably come to feel displeased with and offended by the attorney, and Strategy on Cross-Examination at Trial they will resent the attorney for continuing in this manner in the The strategy that should govern your testimony at the trial is face of your professionalism and politeness.This is true even if the quite different from the one that governed your testimony at the attorney otherwise appears to be making some powerful points pretrial deposition. At the deposition, there was no jury, and your during the questioning. counsel instructed you to answer all questions concisely, without Above all, it is imperative to avoid the ever-present temptation volunteering any information that would lead to more questions. to condescend to or ridicule the plaintiff’s attorney during ques- At the trial, it may be to your advantage on occasion to play a more tioning on technical matters. Although it may well appear to you active role. For example, you may forcefully but politely correct a that the opposing attorney is “out of his (or her) league” in trying misimpression that is being conveyed by the cross-examiner’s to play doctor, your interests are not served by making this attitude questions, or you may add another point that disputes a particular apparent: the jury will quickly identify with and side with a lawyer point the questioner is attempting to make. In doing so, however, who is patronized or belittled because of lack of technical knowl- you must maintain and convey a sense of balance and fairness, for edge or mispronunciation of medical terms. If you are perceived as it is certainly not to your advantage to dispute or equivocate on defensive, sarcastic or hostile toward opposing counsel, the jury obvious points. may well dismiss the logical point you are making on the witness stand out of a feeling of empathy for the examining attorney, espe- Correction of misleading questions If the cross-examin- cially if that attorney has been polite to you during the question- ing lawyer asks you a leading question that contains an unfair or ing. Physician witnesses, particularly those who are professors and improper assumption in the question itself, you should politely researchers, must be on their guard not to be seen as arrogant, correct him or her and make it clear that you do not accept the ivory tower types who are out of touch with the human, caring side assumption in the question. of medicine (the side that jurors typically prefer to see). Vulnerability to this sort of tactic is heightened when the exam- You should refrain from humorous quips or anecdotes, espe- ining attorney uses deposition testimony or characterizes a partic- cially if you are a defendant or a fact witness in the case.You should ular document during the formation of a question. It is astounding
  9. 9. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 9 how often witnesses feel compelled to agree with the examiner’s sible. Unprepared trial attorneys sometimes make the mistake of characterization of the testimony in a deposition or of the contents trying to impeach a witness with a document that, instead of con- of a particular document, without even asking to see the portion of tradicting the witness’s testimony, turns out to be consistent with the deposition or document to which the examining attorney is it, thereby strengthening the very point under attack. This tactic referring in the question. Unless you know for certain that the por- can cause the lawyer to lose all credibility in front of a jury, espe- tion of the deposition or document used in the question is charac- cially when the witness can politely explain why the previous testi- terized accurately, we suggest that you do the following: mony is consistent with the current testimony. Another unfortunate tactic some lawyers use with deposition 1. Always ask to see the deposition transcript or document transcripts is to suggest that the witness just testified inconsistent- referred to in the question before beginning to answer. Quite ly because the in-court testimony did not appear in the deposition often, the questioning attorney is taking the passage out of con- at all. For example, the examining lawyer might say to the witness, text, is ignoring relevant passages immediately before or after “You just testified here in court that ‘fact A’ occurred. Show me the passage quoted, or, even worse, is directly misrepresenting where in your deposition you ever testified that ‘fact A’ occurred.” the content of the document or deposition passage in question. The witness should then say something like the following: “At the Most judges will accord a witness the courtesy of being provid- deposition, I was instructed to answer only the questions asked. I ed with the document if the witness requests it. If, as sometimes looked at my deposition before testifying today, and I do not happens, your request is not granted, this refusal may actually believe that you ever asked me about ‘fact A’ in my deposition. If I redound to your advantage: jurors are almost certain to be sym- am mistaken, could you show me the point in my deposition where pathetic to any witness who requests to see a document and is you asked about that subject?” denied the opportunity. 2. Do not answer the question until you have received the docu- Handling of Exhibits ment you requested.When you are given the document, ask for When you are handed any exhibit, whether it is a demonstrative a moment to see the passage that was the subject of the ques- exhibit or some other record in the case, you should make a point tion, but take a few extra seconds to examine the paragraphs of holding it and moving it with care and respect. This nonverbal before and after the passage, both to confirm your understand- communication with the jury is important because it is represen- ing of the context and to determine whether the preceding and tative of your caring and respectful attitude toward the entire case. following passages help clarify the passage in question. If you are asked to identify an exhibit, you should take the time to 3. If you then remember the question, answer it. If you do not examine it carefully before verbally identifying it. remember, ask the court reporter to read back the question When you are asked to show the exhibit to the jury or to explain after you have read the document. When you answer the ques- something while using the exhibit, you should first ask for permis- tion, be sure to correct any misrepresentation made in the ques- sion to step down from the witness box, then place the exhibit on tion or to add anything you have found that would clearly estab- an easel or otherwise position it and yourself in such a way that you lish that the passage was taken out of context or misquoted. If, do not obstruct any juror’s view of the exhibit as you are testifying. however, the examiner’s question was fair and accurate, simply During your testimony, you have an excellent opportunity to make concede that the passage says what was represented in the ques- eye contact with each juror and build rapport. Sometimes, in deal- tion and wait for the next question. Finally, if the judge denied ing with an exhibit, you will have to face away from the court your request to see the document before you answer, you are reporter. Therefore, you should make sure that you always speak then permitted to testify that because you cannot recall the loudly enough to be heard easily by the court reporter, so that the exact wording of the document referred to in the question, you key portions of your testimony will not be interrupted by the court are unable to answer the question. reporter’s requests for you to repeat a statement or to speak louder. Not surprisingly, witnesses who fail to follow these instructions often find their testimony to be unfairly mischaracterized and Conduct While Not Testifying manipulated and sometimes discover that they have been tricked When your testimony is concluded, or when the judge orders a into conceding points that were untrue or unsubstantiated. A wit- pause, you should not attempt to communicate nonverbally with ness who does follow these instructions, however, will find, more any of the attorneys, parties, or other witnesses. You should walk often than not, that the examining attorney will abandon further away from the witness chair with an erect and confident posture attempts to misrepresent the document with him or her and will and resume the seat you occupied before you testified (unless you adopt a more measured and cautious approach to questioning. have been dismissed from the courtroom by the judge). It is important not to quibble about well-established facts or While other witnesses are testifying in the courtroom, you must undisputed data that appear in medical records. A winning strate- avoid any emotional facial expressions signaling either approval or gy is always to be on the side of facts that the jury will most likely disapproval of the witnesses or the attorneys. Facial expressions regard as true—even if some of those facts, considered individual- showing exasperation, disbelief, approval, or other emotions will be ly, do not appear to be favorable to the defense. seen by the jury as contrived and self-serving and may cause you to be perceived as less objective, factual, and trustworthy. You Handling of cross-examination questions based on depo- should also endeavor to distance yourself physically from other sition transcript Questions referring to your own pretrial defense witnesses who are in the room so as to avoid the appear- deposition transcript should be dealt with in precisely the same ance of collusion. If you are a defendant or the physician whose manner as questions based on any other documents (see above). care is being called into question, you should not wave to or You should ask to see the transcript, you should review its context acknowledge any other witnesses (including the defense expert) before beginning your answer, and when you answer, you should who may come into the courtroom during the proceedings when take the chance to correct any misleading assumptions or add cru- the jury is in the room. cial context. It is to your advantage that your cross-examination You should not stare or smile at the jury: they will resent any testimony be consistent with your deposition insofar as this is pos- attempt, subtle or overt, to influence or curry favor with them.
  10. 10. © 2007 WebMD, Inc. All rights reserved. ACS Surgery: Principles and Practice ELEMENTS OF CONTEMPORARY PRACTICE 9 Minimizing Vulnerability To Malpractice Claims— 10 Especially if you are sitting at the counsel table, it is a good idea to case with anyone if there is a risk that you may be overheard by a take notes occasionally during the proceedings or to have some- juror or a friend of the plaintiff. During recess, when the jury is not thing in front of you at the table to read. If you have a suggestion in the courtroom, you may want to converse with courtroom per- to make to your attorney during another witness’s testimony, you sonnel, witnesses, attorneys, or other persons in the courtroom. should write it down and hand the note to the attorney or else dis- Once the bailiff has called for the jurors, however, you should cuss the matter during the next recess. return to your seat promptly, before the jurors return to the court- During recesses, at lunch, in the elevator, or en route to or from room. Again, you should be careful not to stare at the jurors as they the courtroom, you must be extremely careful not to discuss the leave and enter. References 1. Mello MM, Studdert DM, Brennan TA: The new events due to negligence: results of the Harvard Arch Intern Med 154:1365, 1994 medical malpractice crisis. N Engl J Med 348:2281, Medical Practice Study III. N Engl J Med 325:245, 12. Levinson W, Roter DL, Mullooly JP, et al: 2003 1991 Physician-patient communication: the relationship 2. Medical Care Availability and Reduction of Error 7. Hickson GB, Pichert JW, Federspiel CF, et al: with malpractice claims among primary care physi- (MCARE) Act, 40 P.S. 1303.101-1303.910 Development of an early identification and cians and surgeons. JAMA 277:553, 1997 3. Struve CT: Expertise in medical malpractice litiga- response model of malpractice prevention. Law and 13. Hickson GB, Clayton EW, Githens PB, et al: tion: special courts, screening panels, and other Contemporary Problems 60:7, 1997 Factors that prompted families to file medical mal- options. Project on Medical Liability in Pennsylva- 8. Entman SS, Glass CA, Hickson GB, et al:The rela- practice claims following perinatal injuries. JAMA nia, Report of the Pew Charitable Trusts, 2003 tionship between malpractice claims history and 267:1359, 1992 4. Brennan TA, Sox CM, Burstin HR: Relation subsequent obstetric care. JAMA 272:1588, 1994 14. Medical malpractice jury verdicts: January 2005 to between negligent adverse events and the outcomes 9. Sloan FA, Mergenhagen PM, Burfield WB, et al: December 2005. News release of the Administrative of medical malpractice litigation. N Engl J Med Medical malpractice experience of physicians: pre- Office of Pennsylvania Courts, Table 2, April 25, 335:1963, 1996 dictable or haphazard? JAMA 262:3291, 1989 2006 5. Brennan TA, Leape LL, Laird NM, et al: Incidence 10. Baldwin LM, Larson EH, Hart LG, et al: Charac- 15. Bovbjerg RR, Bartow A: Understanding Pennsylva- of adverse events and negligence in hospitalized teristics of physicians with obstetric malpractice nia’s medical malpractice crisis: facts about liability patients. N Engl J Med 324:370, 1991 claims experience. Obstet Gynecol 78:1050, 1991 insurance, the legal system and health care in Penn- 6. Localio AR, Lawthers AG, Brennan TA, et al: 11. Beckman HB, Markakis KM, Suchman AL, et al: sylvania. Project on Medical Liability in Pennsyl- Relations between malpractice claims and adverse The doctor-patient relationship and malpractice. vania, Report of the Pew Charitable Trusts, p 28