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Medical Malpractice and Risk Management: The Anatomy of a Lawsuit

San Francisco, CA—At the Coalition of State Rheumatology Organizations (CSRO) 2019 Fellows Conference, James S. Haliczer, Esq, Co-Founder and Managing Partner, Haliczer, Pettis & Schwamm, PA, Fort Lauderdale, FL, offered valuable advice to attendees regarding medical malpractice lawsuits.

“The bad news is, you’ll probably get sued. The odds are, somewhere along the way, you’re going to get tagged at least once. But, there’s good news. You’re going to live through it,” said Mr Haliczer. Providing details on the anatomy of a lawsuit, Mr Haliczer also offered pointers for how to emerge from the process as pain-free as possible.

The Beginning: How Do Medical Malpractice Lawsuits Start?

Every medical malpractice lawsuit has a medical basis and a legal basis from which it stems. Focusing on the medical basis, Mr Haliczer explained that approximately half of these cases are based on events that occur in a physician’s office, with the other half occurring in a hospital. Failure to diagnose comprises 30% to 35% of medical malpractice cases; surgical errors represent 25% to 30%; and treatment errors make up approximately 20%. The remainder of the cases are related to problems with anesthesia, lack of informed consent, and other issues. In addition, approximately 30% of medical malpractice cases involve a death and 40% involve a very serious, permanent bodily injury.

Although the specifics of such cases vary widely, the catalyst for filing them can typically be attributed to 1 of 3 factors.

“They arise when you have the ABCs of medical malpractice; basically anger, bad outcome, and poor communication,” Mr Haliczer said, adding that anger is almost always a component.

Whereas physicians have the knowledge and training to identify a bad outcome, it is ultimately the patient who defines it. “If they don’t like it, it’s a bad outcome and typically the way they define it is, it’s something other than what they thought was going to happen,” he explained.

Mr Haliczer remarked that poor communication is something he hears about frequently in his practice. He pointed out, however, that sometimes a physician is communicating sufficiently with a patient, but the patient fails to recognize it because of stress or other distractions.

The legal basis for medical malpractice cases varies because of differing laws from one state to the next, but every case consists of 4 elements:

• Duty. Florida statutes state that “…reasonable care on the part of a physician is that level of care, skill, and treatment which, in light of all the surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful physicians”

• Breach. An important element of the case, this is allegedly when the standard of care was violated by the defendant physician; the standard of care is established by experts on both sides

• Proximate cause. According to Florida jury instructions, “negligence is a legal cause of the damage if it directly and in natural and continuous sequence produces or contributes substantially to producing the damage….” A hotly contested area, determining proximate cause involves the testimony of experts and treating physicians, the latter of whom, if they have treated the patient subsequent to the physician named in the lawsuit, often makes statements that place the defendant rheumatologist at fault

• Damages. The 2 types of damages are (1) economic/tangible (past and future wages plus medical and out-of-pocket expenses) and (2) noneconomic/intangible damages (pain and suffering). Economic damages sometimes total in the millions, Mr Haliczer said. “However, the noneconomic/intangible damages are the ones that scare everybody to death,” he added, saying these incalculable damages are the stuff of eye-popping newspaper headlines when huge sums are awarded, although these verdicts do not happen all the time.

The Middle: What Happens Next?

At this point in the case, attorneys will review records from a wide variety of areas, including medical and business records, along with tax returns, calendars, cell phone records, and computer data. Motions and hearings represent another area handled largely by attorneys. These are pretrial, courtroom arguments that help set the boundaries for a trial. In addition, multiple depositions must be taken, not only from the plaintiff and defendant, but from other treating physicians, the defending physician’s office staff, the family of the patient, and others.

“Hundreds of thousands of dollars are spent in costs during this process, by both the defendant and the plaintiff,” explained Mr Haliczer. “Costs are what we spend to litigate the case; fees are what they pay us for spending it.”

He advised attendees to obtain medical malpractice insurance, because it covers attorney fees if a lawsuit arises.

What is the Defending Physician’s Involvement?

The initial involvement for defending physicians is the first conference with their attorney. Typically consisting of several hours, this meeting allows the 2 parties to get to know each other while discussing the case, as well as any insights the attorney may be able to share from her or his past experience. Several additional conferences will be necessary to prepare for the possible trial.

Interrogatories are written questions, most of which are typically answered by the attorney. From time to time, however, defending physicians must provide answers to any outstanding queries. They may also need to produce certain records, although this typically does not require a major time commitment.

“Depositions are…probably the most important thing that you’re going to do during the course of the case,” Mr Haliczer said.

Questions asked of defending physicians fall into 3 categories: education, training, and experience; the facts of the case; and the standard of care. The first category is usually very straightforward, and takes only a few minutes. Comprising the most substantive portion of the deposition, the facts of the case involve what a physician did and his or her reason for doing it. Questions about the standard of care are aimed at determining culpability.

“This is the most contentious part of the deposition, and this is the part of the deposition where your attorney will focus their attention on trying to keep you from either admitting you did something wrong or blaming somebody else,” Mr Haliczer said. “The latter, blaming somebody else, is the overwhelming tendency. Even the nicest people in the world want to do it when they get under oath.”

Despite their importance, depositions need not be a major source of stress for defending physicians. Taking one’s time and paying close attention to what is being asked are 2 best practices in getting through a deposition unscathed.

“If you listen, you’ll be able to answer the questions truthfully, and you will be able to use one of the 5 best answers,” he said. These answers are “Yes”; “No”; “I don’t know”; “I don’t remember”; and “I don’t understand the question.”

Also of importance in a deposition is to stay calm, according to Mr Haliczer.

“Juries don’t want you to look like you’re trying to defend yourself. Juries want you to look like you’re simply telling the facts as you know them to be,” he said.

Mediation, the process in which both parties meet with an impartial third person in an attempt to reach a settlement before going to trial, is required in some states and often the physician is not required to attend.

With approximately 95% of medical malpractice claims resulting in out-of-court settlements, trial preparation is a task that will not apply for most of those named in a lawsuit. Unlike in a deposition, detailed explanation must be provided in the courtroom. Preparing for this, along with attendance at the trial itself, represents a significant time commitment.

“We instruct our clients to imagine that the minute they walk out the front door of their homes on the morning of trial until they walk back inside their homes at the end of the day, the jury is watching,” Mr Haliczer said.

The End: How Do They Stop?

Winning the case is clearly the best-case scenario, in which nothing further is required of the defending physician. Losing is a bit more complicated. In this case, payment will have to be made by the defendant, which requires reporting on the part of state and national agencies. In addition, investigations by state agencies are a possibility. Inquiries about the litigation will come from the malpractice insurance carrier, the hospital or practice with which the physician is employed, managed care entities, and others. Reading the questions carefully is of paramount importance, Mr Haliczer said, as they are phrased differently by various entities.

Many defending physicians worry about the publicity generated by a medical malpractice case but unless the individual is running for office, has been charged with a crime, or must pay out millions of dollars in a verdict, these cases typically do not reach the newspapers, Mr Haliczer concluded.

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