9/28/2015. Top Ten Mistakes Providers Make Before & During Litigation: Perspectives From Plaintiff & Defense Counsel

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1 Top Ten Mistakes Providers Make Before & During Litigation: Perspectives From Plaintiff & Defense Counsel Peter W. Brandt, Esq. Livingston, Barger, Brandt & Schroeder, LLP, Esq. Law Offices of Pre-Suit Mistake No. 1: Poor Bedside Manners Poor bedside manners by the practitioner can be the catalyst for the negative perception that is often required before a patient will consider seeking an attorney. Poor bedside manners can also add unnecessary emotions that make lawsuits more difficult to resolve. Pre-Suit Mistake No. 1: Poor Bedside Manners (cont d) Poor Bedside Manners Failure to spend adequate time with patients Failure to listen to the patient and their family Failure to speak in lay person terminology Lack of professionalism 1

2 Pre-Suit Mistake No. 2: Poor Charting Practices Charting is the opportunity for the healthcare provider to create favorable evidence and minimize the existence of harmful evidence. Charting can almost, by itself, determine some factual issues in the healthcare provider s favor. Poor charting undermines the excellent care that was provided. Pre-Suit Mistake No. 2: Poor Charting Practices (cont d) Poor informed consent protocols Generic forms Failure to give time to review Failure to use witnesses Failure to have patient initial Downplay or ignore significant risks Incomplete charting Lack of pertinent positives and negatives Failure to use existing forms Improper commentary Pre-Suit Mistake No. 3: Ignoring Red Flags Appreciating patient red flags gives an opportunity to the healthcare provider to alter his/her care, protect himself/herself better and/or determine that the doctorpatient relationship should be terminated. Ignoring the red flags increases the provider s chance of being unprepared when a suit is brought against him/her. 2

3 Pre-Suit Mistake No. 3: Ignoring Red Flags (cont d) Examples of red flags Patients who continually change providers Patients who seek a guaranty Patients who volunteer information about their financial problems Patients with multiple high risk factors Patients with poor compliance Pre-Suit Mistake No. 4: Record Alterations Record alterations ( spoliation ) are beyond simple poor charting and create their own cause of action. These claims can result in punitive damages that generally are not insurable. These claims can destroy an otherwise defensible case. Pre-Suit Mistake No. 4: Record Alterations (cont d) Record alteration can include: The elimination of entire pages of records Deleting/erasing portions of the records Late additions to the chart intended to appear as though they were made contemporaneously Creating new versions of the original record with changes included Creating new records that did not exist originally 3

4 Pre-Suit Mistake No. 5: Improper Incident Handling Small mistakes in handling an incident after it occurs can dramatically impact the defense/defensibility of a case. The law in this area can be complicated and nuanced and the provider should tread carefully Pre-Suit Mistake No. 5: Improper Incident Handling (cont d) Burying your head in the sand Failure to promptly notify risk management/insurance company Guessing on the statute of limitations Contacting the patient s attorney Circling the wagons Improper discussions with others Improper peer review procedures Not involving QA staff for interviews/statements Failure to chart properly Failure to accept responsibility and fix the problem when appropriate During Litigation Mistake No. 1: Failure To Cooperate with Counsel The failure by a provider to cooperate with defense counsel not only undermines the defense of the case, but also can jeopardize coverage 4

5 During Litigation Mistake No. 1: Failure To Cooperate with Counsel (cont d) Failure to provide access to the provider, staff and records as needed Failure to stay engaged in the process by reviewing materials and providing insight and feedback The provider can become overly aggressive to the point it interferes with the defense Failure to listen to counsel and follow their recommendations During Litigation Mistake No. 2: Poor Chart Handling Poor chart handling during litigation can have a varied impact from inconvenience to outcome determinative and should be taken seriously During Litigation Mistake No. 2: Poor Chart Handling Good chart handling should include: Locking up all original documents Making certain that all records are produced when requested particularly difficult with EMR Avoid record alterations / unnecessary EMR access Keeping medical and legal charts separate from each other 5

6 During Litigation Mistake No. 3: Going solo In A Depo Depositions of providers who are not currently involved in the litigation can create problems for other providers as well as create liability for the deponent. During Litigation Mistake No. 3: Going solo In A Depo (cont d) Providers should not give depositions in medical malpractice cases without notifying their malpractice carrier. Helps fellow providers Avoids ethical problems May prevent the provider from being added to the lawsuit During Litigation Mistake No. 4: Poor Deposition Performance Great medical care and great defenses can easily be undermined by a poor performance by the provider in a discovery deposition. You cannot control the facts, the opposing attorney, the judge or the jury but you can control the amount of preparation and effort you give. 6

7 During Litigation Mistake No. 4: Poor Deposition Performance (cont d) Failure to know the medical records Failure to know the deposition testimony of all witnesses Failure to understand the defense of the case, including factual and legal defenses Failure to have expert review at least started before testifying Personality issues During Litigation Mistake No. 5: Poor Trial Behavior Great medical care and great defenses can easily be undermined by poor trial behavior. Failure to wear proper attire Poor behavior on the witness stand Poor behavior at counsel table Poor out of court behavior Failure to be prepared (similar to depositions) Questions We are happy to take your questions now or after our presentation PETER W. BRANDT LIVINGSTON, BARGER, BRANDT & SCHROEDER, LLP 309/ Office 309/ Fax Law Offices of JOHN P. NICOARA LAW OFFICES OF JOHN P. NICOARA 309/ Office 309/ Fax 7

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