Even following the best practices, some patients will suffer adverse outcomes—and some of those patients will bring a lawsuit. Knowing that some of you either are defending claims against you or that you may have to defend a claim in the future, we wanted to provide you with a bit of practical advice that may ease the burden of litigation.
1) Engage: Many physicians want to put a lawsuit out of their mind and “let the lawyer handle it.” Just as a patient can’t cure a cancer by ignoring it, avoiding a lawsuit is not going to make it go away.
While much of the legal work takes place on a day-to-day basis without your participation, you need to remember that this is your lawsuit, not your lawyer’s lawsuit. If you do not engage with your lawyer and help the lawyer shape the defense, your lawyer may end up presenting the wrong theories. More importantly, spending time with your lawyer will help them understand your personality and the way you interact with your patients. If your lawyer doesn’t know you very well, it’s very difficult for the lawyer to build rapport between you and the jurors, who ultimately will determine the outcome of the lawsuit.
2) Teach: Many defense lawyers have picked up a fair amount of medical knowledge during our careers, but few of us have practiced medicine. As you certainly know, the fact that your lawyer has read surgical textbooks doesn’t make them qualified to perform surgery.
Because you have cared for thousands of patients, you know more about your area of medical expertise than we can ever hope to gain in the course of defending a lawsuit. Teach us the medicine that will enable us to understand how and why you made important decisions while caring for the plaintiff. Ultimately, our success at trial depends on our ability to convince juries that your decisions were thoughtful and reasonable, but we can’t do that without your help.
3) Select: In almost every medical malpractice case, the parties will endorse physicians to provide the jury with expert testimony about the medical issues. These experts become important witnesses because they help the jury understand the relevant standards of care and determine whether an allegedly negligent act caused the plaintiff to suffer an injury.
You probably know the well-respected practitioners in your field who would make credible and persuasive witnesses. Help us identify them and persuade them to serve as experts on your behalf.
4) Prepare: During the course of a lawsuit, one of the most critical events is your deposition. During your deposition, the opposing lawyer will attempt to “lock you in” on the key issues in the case and prevent you from changing your testimony at the time of trial. Consequently, you have to be well prepared for your deposition, both in terms of knowing the facts of the plaintiff’s care (which may have been rendered several years earlier) and in knowing the medical principles that applied to the plaintiff’s care.
You must demand your lawyer adequately prepare you for the deposition by reviewing these matters and preparing you for the deposition process. You need to understand how lawyers frame questions in the hopes of obtaining responses that will come back to haunt you. If you haven’t devoted the time and energy necessary for you to understand and feel comfortable with the process before sitting down for the deposition, you’re in trouble.
5) Attend: Your deposition is the only event before trial that you legally are required to attend. As a defendant, however, you have a right to attend any other deposition that takes place before trial, including the deposition of the plaintiffs and the opposing experts.
If you attend the plaintiff’s deposition, you will have the firsthand ability to hear that person’s story, and you then have the ability to suggest areas where your lawyer can challenge the plaintiff’s recollection. If you attend the opposing expert’s deposition, you similarly have the ability to hear that person’s criticisms, and you can suggest areas where your lawyer can challenge the factual or medical basis for the opinions.
6) Demonstrate: Contrary to television depictions, a trial can be a long and boring process, particularly when there’s nothing to capture the jury’s attention. Jurors have a hard time following a witness’s testimony when it consists solely of questions and answers.
This problem can be compounded when the testimony consists of technical medical information. To prevent boredom and inattention, we want to engage the jurors—and you can help us do it. Give us props, whether in the form of anatomic models, instruments used during the procedure, photographs, charts, or animations that will allow us to capture the jury’s imagination.
7) Communicate: Lawyers and doctors work in different environments. For example, you have the ability to order a test and receive the results within hours, but lawyers generally have weeks to respond to an opposing party’s requests for information. Doctors often receive results that are quantifiable and measurable—but ambiguity and nuance are a lawyer’s stock in trade.
You will be frustrated as you go through the litigation, and you need to have clear and open channels of communication with your lawyer.
Just as your patients depend upon you to orient them within an unfamiliar and frightening environment, your lawyer should help you understand what’s happening in your case. If you don’t have enough information to make intelligent decisions, you should ask for more.
8) Trust: While it’s vital to engage in the process and understand how the lawsuit is proceeding, you need to remember you are not a lawyer. There will be times when your lawyer will have to make judgment calls, and you need to give your lawyer the ability to make those decisions.
Please don’t misunderstand: You have a right to make informed decisions, but a lawyer will make hundreds of judgment calls in the course of a trial, such as whether to dismiss a potential juror, pursue a certain line of questioning with a witness, or introduce a particular exhibit. Some of your lawyer’s recommendations may seem counterintuitive to you, but the courtroom is our operating room.
9) Defend: Most jurors come to the courtroom with some skepticism of medical malpractice claims. One of the reasons for this skepticism is jurors generally like their own physicians and want to believe the medical system functions properly. When they hear a plaintiff’s claim that they were injured through medical negligence, they want the physicians involved in the care to explain how the injury occurred and why it wasn’t the physicians’ fault.
You need to be able to stand up, look the jurors in the eye, explain that your care was appropriate, and withstand an attorney’s attempts to impeach your credibility. If you are unwilling to stand up and fight for yourself and your care, there’s little reason to expect the jurors will fight on your behalf once they begin their deliberations.
10) Relax: This may be the most important tip of all. Lawsuits impose a tremendous amount of stress upon all of the participants, but especially upon a physician whose care is under fire.
We’ve represented physicians who have become so stressed and frustrated by the litigation process that it has overwhelmed them and harmed their ability to provide high-quality care for their ongoing patients.
Some physicians resort to alcohol or other substances to cope with stress. This is the worst possible scenario because it increases the likelihood that you will face another lawsuit in the future.
You need to recognize the stress imposed by a lawsuit, take care of yourself, take care of your practice, and seek help when appropriate. Almost every state has a peer-counseling program for physicians that offers specialized and confidential assistance for physicians. Contact your local medical association for a referral to one of these organizations. TH
Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.