Basic elements of a medical malpractice claim:

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1 Presentation by: Margaret Pisacano, BSN, JD Director of Risk Management UK Healthcare Basic elements of a medical malpractice claim: DUTY: To act as a reasonably prudent family practice physician under the same or similar circumstances as presented by the matter at hand. In medicine, this duty is defined by the relevant standard of care. BREACH: It must be proven, by expert testimony, that you breached this duty to your patient. CAUSATION: It must be proven, by expert testimony, that the breach of duty caused a compensable injury to your patient. t DAMAGES: It must be proven that the patient sustained damages. 1

2 Pisacano Kubler Ross stages of being a defendant: Denial Anger Bargaining Depression Acceptance (?) How it all begins signs of a storm brewing: Phone call from a disgruntled patient or family complaining about care Unpaid medical bills in a case where the outcome was less than favorable Complaint letter from the patient Letter from an attorney representing patient either requesting records (passive) or advising you are the target of a potential suit (aggressive) Notice from the Kentucky Medical Licensure Board of a grievance filed by a patient Summons and Complaint 2

3 The Medical Malpractice Complaint: Off to the Races DO: IMMEDIATELY contact your professional liability insurance carrier or the individual responsible for your insurance Read the complaint Secure all medical records, administrative records, billing records, etc. Advise those individuals in your practice who need to know Call your spouse The Medical Malpractice Complaint: Off to the Races DO NOT: Panic Call the patient or his attorney to try and talk them out of litigation Make revisions, additions or clarifications to the medical record Call other physicians named in the Complaint to see what they remember and to brainstorm your defenses 3

4 The Medical Malpractice Complaint: Off to the Races DO NOT: Discuss the facts of the case or how you plan to defend d it with anyone other than your attorney, risk manager, insurance carrier, spouse or minister Discuss the case with reporters Begin to research literature, t websites, bit text t books, etc. on the medical issue presented in the Complaint Call experts in the field presented in the Complaint to get seek their insights/support. Louis, I think this is the beginning of a beautiful friendship. 4

5 Meeting and helping your attorney pointers: You are on foreign turf: take counsel from your attorney, just as you expect your patients who are attorneys to listen to your medical advice. Schedule a face to face meeting ASAP, before the Answer is due (20 days after you receive the Complaint) Prepare for initial meeting: study all available records, be prepared to identify witnesses Meeting and helping your attorney pointers: Cards on the table: The good, the bad, and the ugly Educate your attorney on the medicine and the facts Review and discuss each fact set forth in Complaint and discuss response Timelines and legibility of your notes 5

6 Meeting and helping your attorney pointers: Be prepared to discuss legal defenses Statute of limitations Comparative fault Superceding and intervening causes: other providers Provide all pertinent contact information and identify contact personnel Ask questions Interrogatories and Request for Production of Documents Written questions exchanged between counsel designed to obtain information i and documents pertinent to the case Take seriously: your answers are binding Can be very lengthy and time consuming to prepare responses Seek clarification on exactly which h questions you need to answer, and what documents you need to provide Ask to review all finalized drafts of discovery responses before they are sent to Plaintiff 6

7 Depositions: Purposes To collect facts: who, what, when, where and how To build a foundation upon which experts will render their opinions To judge credibility and presence and to evaluate how a jury will perceive the witness Depositions: Uses To provide to experts to allow formulation of opinions Fill in the holes from the medical records Provide medical reasoning and justification Settlement negotiations Cross examination at trial 7

8 Depositions: General considerations How many? 5 25 Strategy in order of depositions: preference to take the Plaintiff s deposition first Who attends: attorneys for all parties, parties (sometimes), court reporter, videographer The appearance of informality: don t be fooled, this is intensely adversarial Ask your attorney to notify you when depositions have been scheduled and discuss the pros and cons of your attendance. Should you attend the depositions of other parties or witnesses? The Plaintiff Family members Co defendants Other treating physicians Defense experts Plaintiff s experts 8

9 Your deposition Getting ready: Preparation, preparation, preparation KNOW your record KNOW pertinent policies/procedures Understand each side s position and theme Review the complaint, answer, and responses to discovery requests (yours and others) Pre deposition meeting with your attorney: spend the time necessary Your deposition Consider and discuss: The advisability of : review of prior and subsequent records The advisability of review of depositions of other witnesses The advisability of research and review of pertinent medical literature and standards Whether you should be prepared to answer standard of care questions: serving as your own expert 9

10 Your deposition - Consider and discuss: Whether you should be prepared to answer causation questions: why did this patient have a bad outcome, and was it due to your treatment or some other cause? Consider a mock videotaped cross-examination Identify problem areas and practice answering the hard questions. Your deposition: The day has come Sleep and eat before your deposition Bring your CV Dress appropriately Be alert to objections by your attorney Try not to schedule patient care the day of your deposition Don t do drugs. 10

11 Your deposition: Responding to questions Answer only what is asked, do not volunteer information Do explain your actions and medical reasoning Listen for compound questions and answer each part Do not speculate. You can, however, discuss your usual and customary practice Do not take the hostility bait: answer all questions professionally and calmly Be Alert: Plaintiff s counsel tactics hypothetical questions and questions seeking an easy answer: it depends. The awkward silence Intimidation: the incredulous look and tone: Do you mean to tell me..? Repetitive questions Summary questions Plaintiff s counsel as a sympathetic friend Use of literature: the authoritative text trap 11

12 Elements of credibility Timely and accurate documentation A good recollection: I remember Establishing an event took place because it is part of your regular practice Elements of credibility: The Marcus Welby syndrome 12

13 Should I Settle? Facts and the medicine: most important? Venue, venue, venue Sympathy Skill of opposing counsel Strength of experts Judge: key rulings on admissibility Your own personal feelings about trial Questions? 13

Presentation by: Director of Risk Management UK Healthcare

Presentation by: Director of Risk Management UK Healthcare Presentation by: Margaret Pisacano, BSN, JD Director of Risk Management UK Healthcare Basic elements of a medical malpractice claim: DUTY: To act as a reasonably prudent family practice physician under

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