The Anatomy of a Medical Malpractice Case. How Does The Physician Survive A Medical Malpractice Lawsuit?

Transcription

1 The Anatomy of a Medical Malpractice Case How Does The Physician Survive A Medical Malpractice Lawsuit?

2 Notices From F Attorney 1. Request to meet with the physician. 2. Request for medical records or information. 3. Legal notice of Intent to Sue. 4. May be a Lawsuit.

3 What Is A Lawsuit? Complaint Plaintiff (patient) Defendant (physician/hospital/nurse) Short and plain statement of the facts which form the basis of the claim against the physician.

4 The Complaint Must State The Four Elements of Medical Negligence 1. That the physician owed the patient a duty to provide a standard medical treatment;

5 2. How the physician fell below, breached the standard of medical care when providing treatment; 3. How the failure of medical treatment caused injury to the patient; 4. What damages directly resulted from the breach of the alleged standard of care.

6 Amount of Award for Damages 1. Limited in many states, as to general (Non- Economic) 2. Unlimited in most complaints

7 Promptly Notify Liability Insurance Co. or Agent 1. Intent to sue letter 2. Indication of possible or pending claim 3. Formal court complaint NOTE: Secure proof of receipt (certified or return receipt)

8 What Is The Difference Between 1.Civil Suits & 2.Criminal Suits?

9 Malpractice Civil Suits Plaintiff hires Private Attorney. Insurance Co. selects Defense Attorney Physician may hire Private Attorney Uninsured Defendant hire Defense Attorney Money judgment or money damages.

10 Malpractice Criminal Suits Complainant/Plaintiff: State, County, Municipality, or Federal Government. Prosecutor is Attorney for Plaintiff. Criminal may hire Private Attorney. Indigent Defendant: Court Appoints Defense Attorney. Conviction: Lose freedom (Jail time), Probation, &/or Criminal Fine.

11 Civil Litigation Process Complaint filed by Plaintiff s Attorney Service of Complaint to Defendant Answer filed by Defense Attorney Discovery Phase: Interrogatories Demands for Documents Depositions & Examination of Parties Expert Witnesses Selected Summary Judgment ADR (Alternate Dispute Resolution) Trial

12 Length of Civil Process in Medical Malpractice Cases One One to Four Years or Longer

13 Outcomes of Civil Suit Voluntary Dismissal Dismissal with Prejudice Summary Judgment Settlement Jury Verdict: Breach of Standard of Care; Proximate causation; Money Damages Appeals.

14 Receipt of Legal Papers Notify insurance Co./agent. Self-insured: Contact risk management &/or Private Attorney. Mark calendar for pending deadlines. Make sure legal papers are handled properly.

15 Receipt of Legal Papers (Cont d) Do not depend on office staff for handling. Do not stack legal papers with office papers. Make a copy & send originals to agent.

16 Failure To Properly Respond To Civil Complaint 1. Default Judgment against physician. 2. Insurance Co. may refuse to defend. 3. Insurance Co. may refuse to pay judgment. 4. Physician cannot defend on the issue of wrong.

17 Defense Attorney Assigned 1. Usually by insurance company. 2. Contacts physician: Letter, telephone or both. 3. Discuss concerns with attorney and insurance Co. 4. Conflict of interest.

18 What To Tell Defense Attorney? 1. Everything about the case 2. Attorney-Client Privilege 3. Problems Re: Care & Treatment 4. Problems by other Care Givers

19 Who To Talk To About The Lawsuit? 1.Only Lawyer, Spouse, or Counselor. 2. May discuss feelings about being sued with friends & colleagues, not details of the case. 3. Do not call plaintiff or plaintiff s attorney.

20 Defense Expert Selection Participate with selection process. No friend. relative or regular contact Truly independent. Quality credentials. Medical/Legal experience. Only contacted by defense attorney.

21 Peer Review Documents 1. Protected by statute; not discoverable, except in Florida. 2. Rarely, Court orders in camera examination only by the Judge. 3. Exception: Voluntary disclosure to third party.

22 Medical Records 1.Never alter medical records. 2.May carefully correct a mistake or add what was left out, by a clearly labeled addendum, signed and dated, without changing the original text.

23 Liability Insurance Co. Pays For: 1.Defense costs; 2.Settlement or Judgment; 3.Sometimes compensates Doctor for Trial Time.

24 Insurance Co. DOES NOT Pay For: 1. Personal Attorney costs; 2. Physician s lost income during litigation; 3. Monetary awards in excess of policy limits. 4. Unprofessional, illegal or criminal conduct.

25 When To Hire A Personal Attorney? 1.To protect personal assets; 2.Ineffective assistance from insurance attorney; 3.To negotiate with insurance Co.

26 Repercussions 1. What Happens in Settling or Losing a Lawsuit? 2. Who is Notified about Settlement or Loss, & by Whom? 3. Can Physician Contest/Make a Statement about Case? 4. What is the Effect on the License to Practice?

27 Repercussions (cont d) 5. What is the Effect on Liability Insurance? 6. What Information & Records should be Saved? 7. What to Disclose when applying in the Future for: Hospital Privileges; Liability Insurance; Medical License; Membership in a Medical Association?

28 Take a Break. BREAK

29 Preparing For Legal Process What to Read. Familiarity with Medical Records. Meetings with Defense Attorney. Preparing for Deposition & Trial Testimony. Role of Dr. during Deposition & Trial. Dress, Demeanor, and the Jury.

30 Medical Malpractice Stress Syndrome 1. Initial Emotional Reaction to Lawsuit. 2. Long Term Emotional Reactions. 3. Seeking Emotional Support. 4. When to Get Professional Help. 5. Family Reaction. 6. Wellness Program & Techniques. 7. Dealing with Anxiety prior to Deposition and Trial Testimony.

31 Sarah J. Franklin v. Kyle Toal,, M.D., And Norman Regional Hospital Authority, a Public Trust (19 P.3d 834) The defendant physician performed heart surgery on plaintiff at defendant hospital. After plaintiff's chest cavity was opened, a phrenic nerve pad was placed beneath her heart.

32 Franklin v. Toal The pad was not removed from plaintiff's chest cavity before the incision was closed.

33 Admission by Physician Defendant physician admitted that he had a duty to remove the pad.

34 Jury Verdict The Jury rendered a verdict in favor of defendants.

35 Trial Court After the verdict, the plaintiff submitted a motion for a judgment notwithstanding the verdict, or, in the alternative, a motion for a new trial. Trial court denied the motions.

36 Court of Civil Appeals Plaintiff appealed to the Court of Civil Appeals. The appellate court affirmed the Trial Court. Plaintiff appealed to the Oklahoma Supreme Court.

37 The Franklin Case The Supreme Court of Oklahoma held that the Trial Court erred in denying plaintiff's motion for directed verdict against the defendants.

38 The Oklahoma Supreme Court The court vacated appellate court's opinion. Defendant physician's failure to remove the pad was a breach of his duty and was the proximate cause of plaintiff's injury.

39 Reasoning Based on defendant physician's admission that it was his duty to remove the pad, no judgment was involved in failing to remove the pad. He (the surgeon) simply forgot to remove the pad, and There was no excuse for failing to remove it.

40 Inference: Negligence The only reasonable inference to be drawn from the evidence was that defendant physician was negligent. Defendant hospital also failed under its articulated duty to use ordinary care and it was also negligent.

41 Holding of Supreme Court 1. Vacated the opinion of the Court Of Civil Appeals. 2. Reversed the judgment of the Trial Court. 3. Remanded the case with instructions for Trial Court to enter partial summary adjudication on the issue of liability in favor of plaintiff and against defendants. 4. Trial on the issue of damages only, and 5. To enter judgment for plaintiff which was to include appeal related costs.

42 That s All Folks