Examining Elements to Prepare the Pediatric Practitioner

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1 Mock Trial Examining Elements to Prepare the Pediatric Practitioner Brian G. Wilhelmi M.D./J.D., Eric V. Jackson M.D./M.B.A., Robert S. Greenberg M.D., Brian J. McNamara J.D. 1

2 Educational Objectives Upon completion of the workshop, the participant will be able to: List key concepts and legal strategies inherent in medical malpractice cases. Describe the benefits of disclosure and avoidance of malpractice claims. Identify qualities found in an ideal defendant in a medical malpractice case. Demonstrate testimony techniques in preparation for a deposition or trial. February 21,

3 Legal Disclaimer Any information provided in this presentation regards general legal information and does not constitute the provision of legal guidance or the formation of legal representation. The case, and all its associated facts, are completely fabricated for the purpose of simulation and do not represent February 21, 2014 any actual events or any 3

4 Disclosures None of the presenters today have any personal financial interest in the topics discussed today, nor will there be any topics discussed with a bias towards services provided by any presenter. February 21,

5 Ground Rules This is a learning environment. We are going to the heart of the matter. Participation is ENCOURAGED! What happens in Workshop.Stays in workshop. Finally.This is only business. February 21,

6 Introductions Robert S. Greenberg M.D. Eric V. Jackson M.D./M.B.A. Brian G. Wilhelmi M.D./J.D. February 21,

7 Why Provide Legal Training? ~National Statistics~ 42% of Anesthesiologists over the age of 55 have been sued at least once. 65% of those claims dropped and 25% settled 4.5% were resolved via Mediation. 5.0% were resolved via trial. At trial, Physicians on average won 90%, but outcomes are highly dependent upon jurisdiction. Cost of Defending Nonpayment Claim = $20,000 Cost of Defending Winning Case to Trial = $100,000 Feb 7, 2013 Source: American Medical Association Physician Practice Information (PPI) Survey 7

8 Why Provide Legal Training? Our Recent Survey of ACCM Providers (N=117) Involvement in Litigation by Years of Experience Years in Practice < > 20 No Lawsuits 1 Lawsuit >1 Lawsuit 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Percent of Practitioners in Experience Group February 21,

9 Why Provide Legal Training? Our Recent Survey of ACCM Providers (N=117) Years of Professional Experience vs. Self Efficacy < 5 yrs yrs. Avoiding Negative Medical Outcomes 23/50 10/16 7/ yrs. > 20 yrs. 25/32 16/50 Documentation 7/11 11/16 24/32 Avoiding Medical Malpractice 9/50 4/11 13/32 8/ Percent of Providers Answering "Agree" or "Strongly Agree" February 21,

10 Why Provide Legal Training? Our Recent Survey of ACCM Providers (N=117) I would like to receive proactive education/training to reduce the likelihood that a negative medical outcome will result in medical malpractice litigation. February 21,

11 Why Educate about Depositions? Anesthesia is a Low Frequency, High Damages Specialty Feb 7,

12 How Does an Adverse Event Turn into Litigation? PREVENTION Safety Protocols Environmental Safeguards Staff Training TimeOut s Checklists Event MITIGATION Family Counseling Apology Law Debriefing Mediation Litigation February 21,

13 Opening Statements The Case of Larry Shelby February 21,

14 The Case 10 year old male presents for T&A. PMH: Asthma, 34 week gestation Meds: Albuterol All: Seasonal Exam: Mild Nasal Congestion and mucous present in the larynx on induction February 21,

15 The Handoff A Quick Hand-Off Resident Involvement The Routine Case at a Critical Period February 21,

16 The Emergency Overhead STAT Confusion & Commotion Critical Action Required February 21,

17 PACU Admission Transport Resident-Nurse Handoff Timely Nursing Evaluation of an Unstable Patient February 21,

18 Rapid Response Recognition Emergency Code Team Dynamics February 21,

19 Discussion with Family Critical Conversations Apologies Agreement on the Sequence of Events February 21,

20 How Should we Approach the Initial Disclosure? Always consider a call to legal. Discuss the procedure and sequence of events with the operating team. Introduce yourself to family. Discuss the procedure and the outcome. Tell what you know to be true, no speculation. Offer a sincere apology for the patient s condition. Discuss the plan of care moving forward. February 21,

21 Why Apologize and Disclose? What plaintiff s want from litigation To receive an explanation. To prevent the same thing from happening to someone else. For doctors to realize what they ve done. The truth! What an Apology may Induce Reduce Lawsuit Initiation Induce Settlement February 21,

22 Service of Process February 21,

23 Medical Malpractice Tort: A wrongful act or an infringement of a right (other than under contract) leading to legal liability. Civil Court: Non-Criminal Win by a Preponderance of the Evidence

24 The Civil Court System Anesthesiologists are Sued for the Tort of Negligence Negligence: Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Components: 1. Duty 2. Breach of Duty (Standard of Care) 3. Causation 4. Damages

25 Malpractice Case Timeline Inciting Event Discovery Trial Complaint Preliminary Motions Answer Depositions, Interrogatories, Expert Witnesses, Records/Documents Pre-Trial Conference Settlement Offers Post-Trial Motions, Appeals Outcome February 21,

26 What is a Deposition? The portion of a malpractice A case live question during which & answer evidence session in that the a form provider of sworn can influence testimony to is positively recorded alter for later the outcome use in the of the case. courtroom. February 21,

27 What is a Deposition? Recorder Defandant s Attorney Defendant Stenographer Plaintiff s Attorney February 21,

28 Understand Roles at Deposition The Deposition is not used to resolve a dispute. It is used to gather information and accomplish goals. The Plaintiff s Attorney will: Test potential theories of negligence Test your desirability as a witness Make a record for subsequent impeachment The Defense Attorney will: Prevent improper question forms Make subtle suggestions on answers February 21,

29 Understand Roles at Deposition The Provider s role at deposition is to answer questions honestly and tactfully. Communication Skills Matter! February 21,

30 Debriefing Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D. February 21,

31 #1. Tell the Truth February 21,

32 #2. Be Professional Dress Conservative Control Emotions Avoid Teaching Provide Sympathy February 21,

33 #3. Answer only What is Asked QUESTION: Have you been sued before? INAPPROPRIATE ANSWER: I've had no other lawsuits but I have reported several incidents to my insurer that never became suits. APPROPRIATE: ANSWER: NO. February 21,

34 #4. Avoid the Natural Impulse to Teach QUESTION: Given the ABG results of: ph = 7.21/ pco2 = 70/ po2 = 75/ HCO3 = 27, how do you explain you explain the metabolic acidosis in this patient? INAPPROPRIATE ANSWER: Well, that is not correct. The data suggest that this patient had a respiratory acidosis and the probable causes were... APPROPRIATE ANSWER: I am unable to answer the question as you have stated it. February 21,

35 #5. Do Not Speculate QUESTION: Doctor, wouldn't you have avoided causing a hemothorax by placing an internal jugular central line under ultrasound instead of a subclavian? INAPPROPRIATE RESPONSE: Well, yes, I guess I could have avoided the artery under ultrasound guidance. APPROPRIATE RESPONSE: In the circumstances at the time, my decision was both clinically appropriate and in keeping with the community standard. February 21,

36 #6. Avoid Legal Blunders QUESTION: Doctor, are you familiar with Miller s text on anesthesiology? APPROPRIATE RESPONSE: Yes, I am familiar with it. QUESTION: Well, then, doctor, you recognize this text as authoritative, do you not? INAPPROPRIATE RESPONSE: Yes. APPROPRIATE RESPONSE: It is one of many useful texts. February 21,

37 #7. Avoid Blame QUESTION: Doctor, are you aware that when my client told his current doctor that you performed the anesthetic that left him with a CVA, Dr. Brown just rolled his eyes and shook his head? INAPPROPRIATE RESPONSE: Well, Dr. Brown has always been critical of my work and is responsible for generating several other lawsuits against me. APPROPRIATE RESPONSE: First, I was not aware of that. And second, I know of no reason why Dr. Brown would act that way. My care was completely appropriate and my patient's injury was an unfortunate but known side effect of the procedure, which I covered fully in the informed consent conference. February 21,

38 #8. Do Not Open New Information QUESTION: Doctor, please name any individuals with whom you have discussed this case. APPROPRIATE RESPONSE: Aside from my lawyer, I have mentioned that I have been sued to some individuals and may have told them how I felt about it but I have not discussed the facts or circumstances of the case with anyone. APPROPRIATE RESPONSE: No one other than my lawyer. February 21,

39 #9. Do Not Testify Against Yourself QUESTION: Doctor, isn't it correct that if the physician uses reasonable care, this result (referring to the patient's injury) does not ordinarily occur? INAPPROPRIATE RESPONSE: That's correct. APPROPRIATE RESPONSE: Although the result may not ordinarily occur, when it does occur, it is most often due to the inherent risk of the procedure. February 21,

40 #10. Prepare to Encounter the Patient/Plaintiff February 21,

41 Is This A Likely Lawsuit? February 21,

42 Discussion & Thank You Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert Greenberg M.D. February 21,

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