Series: Malpractice From A-Z Second of a Series of Five. Being Sued? by Greg Minana, JD & Tim McCurdy, JD

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1 Series: Malpractice From A-Z Second of a Series of Five Being Sued? What To Do and What To Expect by Greg Minana, JD & Tim McCurdy, JD Being a defendant in a medical malpractice lawsuit is an aspect of practicing medicine that is foreign to those physicians who have not yet experienced it. Greg Minana, JD, is a member, and Tim McCurdy is an associate of Husch & Eppenberger, LLC, in its St. Louis office. Husch & Eppenberger, LLC, acts as outside general counsel to the MSMA. Introduction In 2004, Missouri physicians and hospitals reported 1,379 claims of medical malpractice to their insurers. 1 In today s litigious society, it is not necessarily a question of if a physician will be sued in his or her career, but when. The litigation process can be a frustrating and unfamiliar experience for a physician. This article provides some basic guidelines to follow when you suspect that a lawsuit may be filed, or when you have in fact been sued. What should you do if you either have been sued, or suspect that you may be sued? Although you may not have any idea that a patient is planning on suing you, there may be occasions when you suspect that suit may be filed. Whether the patient experienced a bad result for no apparent reason, or you have reason to believe a mistake has been made, there are certain steps that you can take when you suspect that you may become the target of a lawsuit. These same steps should be taken if a lawsuit is in fact filed against you. Notify Your Carrier, Notify Your Carrier, Notify Your Carrier Of the many steps that can be taken by the physician, the first and foremost must be to immediately notify your insurance carrier. It is never too soon for you to notify your insurance carrier of the potential for a claim against you. Even if you do not have reason to suspect a lawsuit, if your office receives a request from an attorney for a patient s medical records you should notify your insurance carrier. By providing notice to your insurance carrier as soon as possible, the insurance company will be able to take precautionary steps to make certain that you are ready if suit is indeed filed. If a lawsuit has actually been filed, it is especially important that you immediately contact your insurance carrier. Normally a response to the lawsuit must be filed by your defense attorney in as little as twenty to thirty days from the date that you are served with the lawsuit. It is essential that your defense attorney have as much time as possible to analyze the lawsuit to prepare your response. Remember, while being served with a lawsuit is likely a new and confusing experience for you, your insurance carrier handles this exact scenario every day. You should give notice to your insurance carrier as soon as possible and listen carefully to the instructions your insurance carrier provides. Prepar epare e Yourself Emotionally In preparation for a medical malpractice lawsuit you should prepare 124 Missouri Medicine March/April 2006 Vol. 103 No. 2

2 yourself emotionally to defend your case. Medical malpractice litigation is a long process, and it can be a frustrating experience for physicians. Hopefully, the frustration of a medical malpractice lawsuit can be reduced by following the guidelines set forth in this article and by knowing what to expect. Remember that, unlike the practice of medicine, a lawsuit is an adversarial proceeding where you will be called upon to defend yourself against accusations made by your former patient and physicians retained as experts by your patient to criticize you. Furthermore, you should not expect the lawsuit to go away once you have rationally explained why you made the medical decisions that you made. Above all else, you must attempt to remain objective and analytical in your approach to a medical malpractice lawsuit. As with any medical decision, allowing your emotions to interfere with your actions in response to a lawsuit will only be detrimental to the outcome of your case. This may at first seem contradictory: you will be called upon to be a strong advocate for your own care but you must also remain objective. You can be a strong advocate of your care without becoming angry or combative with the plaintiff s lawyer or frustrated with the process. Although the level of activity in your case may ebb and flow, you should remember that a lawsuit is not a sprint, rather it is a marathon that will test your patience and your endurance. If you prepare yourself for this at the beginning of a lawsuit, you will be better able to go through the experience of being the target of a lawsuit. Preserve the Recor ecords ds Once you are placed on notice that you have either been sued or will be sued, you have a duty to preserve the medical records regarding that patient. If your office maintains a file on the patient make certain that those records are preserved. Although not required by law, it is best that the records be locked up with limited access. If you kept a personal file with your own notes these should be kept as well. It goes without saying that the records should not be altered or added to after the fact. It is only natural for a physician confronted with a lawsuit to feel the temptation to correct a time entry that the physician knows is wrong, adding to a note that in hindsight was somewhat cryptic, or supplying additional recollections. While it is only human to feel this temptation, it must be resisted. Setting aside the obvious ethical concerns presented by altering medical records, altering or adding to a medical record can have a devastating impact on your case. Remember that the copy that you are looking at may not be the only copy of that record in existence. In the hands of a skilled plaintiff s attorney a doctored document can turn an otherwise defensible case into a case of potential liability. Preserve your Thoughts Often you will not be served with a lawsuit until long after you treated the patient. It may then be another six months to even a year before the plaintiff s attorney asks you about the case at your deposition. Since your recollection will be better the closer you are to the events, it is a good idea to prepare a diary of all your recollections about the case. These notes should be as inclusive as possible - it is impossible to tell at this early stage if what you consider to be a minor or obvious point may prove to be of vital importance to the defense of your case. These notes should be over inclusive, including your thoughts about the case, who was involved, anything unusual about the case, and any conversations that you had with the family or the patient. Most importantly, these notes should be made in the form of a letter to your attorney or your insurer so that they will remain a privileged document. Keep a Separate File It is also advisable to begin a concurrent file for your personal use, marked in some way to show that it is your legal file. It is important to keep your notes, legal papers, and any correspondence from your attorney or your insurance carrier regarding the lawsuit in this separate file. You have a right to maintain the confidentiality of your communications with your attorney or your insurer, but only if you take steps to protect that privilege. Once you share these records with someone else the privilege may be waived. Silence is a Virtue Once you suspect that you may be sued or after you have been sued it is important that you avoid discussing the case whenever possible with anyone other than your attorney or your insurer. While you should inform your employer of the existence of the claim, when possible you should avoid discussing the case with your colleagues or staff. It is natural to seek comfort and reassurance from your colleagues regarding the care that you provided and that is now being questioned. However, these innocent conversations may be misconstrued by a plaintiff s lawyer and prove detrimental in the future. What Should You ou Tell ell the Patient if You ou Think a Mistake Has Been Made? Although you should avoid discussing the case with your colleagues, a more difficult question is how you should interact with the patient if you think a mistake may have been made. The situation may arise where you suspect a mistake has been made and you are still in contact with or even treating the patient. Physicians must then struggle with the question of how much information March/April 2006 Vol. 103 No. 2 Missouri Medicine 125

3 should be shared with the patient, and should the physician apologize for a mistake. If there is an issue concerning the patient s care that may affect the future health of the patient, then that issue must be addressed with the patient. However, if the health of the patient is not at issue, effective communication while protecting your own legal rights can prove to be an effective way to avoid potential litigation. A patient that has a good rapport with a physician is less likely to subsequently bring suit against that physician. This simple fact is best illustrated with an example. A patient underwent what was considered to be routine, minor surgery but unexpectedly developed life-threatening complications. The patient lingered near death for several days as his treating physician struggled in vain to determine why the patient s condition was deteriorating. Although the physician was unable to determine the cause of the complication, the physician remained at the patient s side along with his family for several days. Finally, after several days the physician s partner examined the patient, immediately recognized the problem, and ordered corrective measures that saved the patient. Nevertheless, when the patient decided to bring a lawsuit he sued the physician s partner. While the physician arguably should have recognized the source of the complication sooner, the patient chose not to sue the physician because the patient and his family had a good relationship with the physical. (Of course, the fact that the physician s partner was sued demonstrates that sometimes there is simply nothing you can do to avoid a lawsuit.) While it is important to maintain open communication with the patient, the much more difficult question is whether a physician should admit a mistake and apologize to the patient. Patients who do bring suit against their physicians often state that all they really wanted was for a physician to step forward and explain what happened and apologize for making a mistake. When no explanation or apology is forthcoming a plaintiff s lawyer explains to the patient that the way the physician apologizes is by paying money, and a lawsuit is filed. In fact, some physician groups such as the Sorry Works! Coalition advocate openly apologizing to patients when a mistake is made as both a matter of good patient relations and a method of reducing the potential for a lawsuit. 2 While apologizing to a patient may be an effective way to avoid a lawsuit, if a lawsuit is in fact filed an apology by a physician may have important legal ramifications. Under Missouri s new tort reform law, a physician may express sympathy and condolences to the patient or the patient s family without those expressions of sympathy being used against the physician in a lawsuit. 3 However, if the physician admits that the physician made a mistake, that admission can be used against the physician to prove to the jury that the physician committed malpractice. The clear purpose of Missouri s new law is to enable the physician to maintain open communication without the fear of the physician s expressions of sympathy being used against him or her. What Can You Do to Help Your Case? Even if you have tremendous rapport with a patient, there may be no way to avoid having a lawsuit filed against you. More commonly, you may not have any idea that a patient is considering filing suit against you until you are served with the petition long after you provided treatment. Although the litigation process will likely be a new and unusual experience for you, it is important for you, the physician, to avoid becoming a bystander in your own medical malpractice lawsuit. It is common for a physician not to want to be bothered by the inconvenience of a lawsuit, but you alone have the best grasp of the events and the issues in the case. Your active participation in the process can be of tremendous assistance to a favorable resolution of the case. Perhaps the biggest asset you provide to the attorney is your knowledge of the medical issues in the case. Although your defense attorney will have a sophisticated level of medical knowledge for a nonphysician, even after fully preparing the case, the attorney s medical knowledge will pale compared to your knowledge. You can assist the attorney by pointing out potential issues. You may well be asked by your attorney to sit in the shoes of the physician hired by the patient to criticize you, and to tell the attorney what you would criticize if you were on the other side. By highlighting these issues for the attorney the attorney will be prepared to confront them and to rebut them with your own experts. Finding experts is another key role you can play in assisting your attorney. Although you will likely want to avoid retaining an expert with whom you have a personal relationship, your knowledge of experts within your field will help the attorney retain an effective advocate for your care. Medical malpractice cases are usually decided on the strength of the expert testimony - this may not necessarily mean the expert with the longest c.v., but rather the most effective communicator and advocate for your care. You should begin thinking of potential experts as soon as you become aware of the lawsuit. Another key aspect of a medical malpractice case is medical literature. Lawyers will often turn to medical literature to explain to the jury what the amorphous term standard of care means in your particular case or to impeach the plaintiff s expert. Again, you can be of assistance to your attorney by performing literature searches regarding the particular illness or treatment at issue. If an article is critical of the care given in your case, it is 126 Missouri Medicine March/April 2006 Vol. 103 No. 2

4 important for the attorney to know about it so it can be distinguished or explained. If the literature supports the actions taken in the case, it can serve as a valuable tool to defeat the patient s criticism. What is the Process You ou Should Expect Once a Suit Has Been Filed? Although each medical malpractice lawsuit will have its own nuances, there are certain patterns that provide you with an idea of what to expect. A medical malpractice lawsuit can be a very long ordeal which is measured in months instead of days, and may take up to two to three years before it is resolved. Most malpractice cases follow the same procedural steps to resolution. First, you are served with a copy of the lawsuit. Once this happens you should immediately take the steps set forth above. When your insurance carrier receives the lawsuit from you, they will retain an attorney on your behalf. Your insurance carrier will most likely select your attorney without any input from you. Although this attorney presumably has a relationship with your insurance company, always remember that the attorney is your attorney, and has been hired to represent your interests. If you have questions, ask and make certain that you get answers. If you have concerns regarding how your case is being handled, raise them with your attorney, or directly with your insurance carrier. You always have the right to retain your own counsel, although your insurance company will presumably not pay for the costs of your personal attorney. Provided you have confidence in the defense attorney retained by the insurance company, retaining a personal attorney to participate in every aspect of the lawsuit may be unnecessarily duplicative and expensive. However, like any services provided by a professional, there is always the option of obtaining a second opinion. Depending on the allegations contained in the lawsuit, your attorney may file a motion to dismiss the case, or to clarify what the plaintiff is alleging, or a motion to move the case from one county to another. Your attorney will contact you at the beginning of the case to meet and discuss your recollection of the case and to discuss potential issues. Each side will normally serve written discovery requests on the other side which require the party to produce documents or answer written questions. You can anticipate the plaintiff serving interrogatories on you, and your attorney will need your assistance in preparing your responses. The parties then take the depositions of fact witnesses, including the depositions of the patient and the healthcare providers. After these depositions are completed, the plaintiff will be required to identify their expert witnesses and produce them for depositions. Once the depositions of the plaintiff s experts have been completed, the defendants disclose their expert witnesses, and the plaintiff will normally depose these experts. After the defendants experts have been deposed the case should be ready to proceed to trial. Alternative Dispute Resolution: What is it? Is it Right for You? Increasingly, lawsuits are resolved well before trial through alternative dispute resolution, or ADR. In fact, the judge may require the parties to attempt to resolve the lawsuit through ADR. There are two basic forms of ADR: mediation and arbitration. Mediation is a nonbinding attempt to resolve the case in which the parties agree to present their case to a mediator. The mediator, commonly a retired judge or a senior trial attorney with significant experience with medical malpractice cases, will listen to each side describe their case and then attempt to find a mutually agreeable settlement. Although mediation is an informal process that varies from mediator to mediator, often the two sides will meet in one conference room at the beginning of the mediation. The mediator will ask each lawyer to give a presentation regarding the party s settlement position in front of the other party. The parties then break out into separate rooms and the mediator shuttles back and forth between the parties, stressing to each side what he perceives to be the weakness of their case or the strength of the other side s arguments. The mediator does not have the power to force the parties to do anything, and at any time either party can walk away from a mediation. Mediation can be a valuable tool in resolving a case of potential liability without going through the ordeal of a trial. Mediation can also have a cathartic effect on the patient by giving them an opportunity to tell his or her story to a third-party. However, if you do not want your case to be settled, then there is no need to pursue mediation. Arbitration is a more infrequently used form of ADR in medical malpractice cases. Arbitration is a binding proceeding that is more similar to an abbreviated trial. The parties will select an arbitrator to hear the case, and then each side will present their case to the arbitrator. Most likely, the arbitrator s decision will be binding. An arbitration can normally be completed more quickly than a regular lawsuit with significantly lower costs. Whether to enter into settlement negotiations or to pursue the lawsuit to trial is an inherently personal decision, and if your insurance policy contains a consent to settle provision that decision will be yours alone. A consent to settle provision in an insurance policy mandates that the insurance company cannot settle a case, or even enter into settlement negotiations, without your consent. Be advised, however, that once you give your consent to the insurance company to enter into settlement negotiations the insurance company can settle the case without consulting you, and you are not March/April 2006 Vol. 103 No. 2 Missouri Medicine 127

5 allowed to place an upper limit to your consent. The insurance company may seek your recommendation or keep you advised of the status of negotiations. However, once you give your consent, the insurance company is free to negotiate the terms of a settlement at any amount within the policy limits without any further input from you. When deciding whether to give your consent and enter into settlement negotiations, it is important to consider the impact of any settlement payment or verdict in regards to the National Practitioner Data Bank, or NPDB. The NPDB is a federally mandated database of information regarding a physician s medical malpractice history. If a claim against a physician is dismissed without any payment being made or if a physician obtains a defense verdict at trial, no report is made to the NPDB. However, if the physician elects to pay money to settle the case, or if a jury returns a monetary judgment against the physician, this information will be reported to the NPDB. The information collected in the NPDB is not available to the general public. However, this information is available to insurance companies, any board of medical examiners or other state licensing board, hospitals, professional societies that perform peer reviews, and any other health care entity that performs peer reviews. Conclusion Being a defendant in a medical malpractice lawsuit is an aspect of practicing medicine that is foreign to those physicians who have not yet experienced it. However, given the rate with which lawsuits are filed in Missouri, being involved in a lawsuit is something for which you must be prepared. By following the guidelines set forth above you will hopefully be able to avoid some of the frustration that naturally comes with this experience. Refer eferences ences 1. This article is written by Greg Minana and Tim McCurdy. Greg Minana is a member of Husch & Eppenberger, LLC, in its St. Louis office, and Tim McCurdy is an associate with Husch & Eppenberger, LLC. The information contained in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and readers are urged to consult their own attorney concerning their own situation and any specific legal questions. 2. Missouri Medical Malpractice Insurance Report, Missouri Department of Insurance, October The Missouri Department of Insurance estimates that fifteen to twenty percent of all malpractice claims go unreported V.A.M.S MM Missouri State Medical Association presents exciting trips in 2006 from St. Louis and Kansas City (other midwest cities are available) CAPTIVATING HONG KONG March (8 days/6 nights) $1,599 Per person, double occupancy (plus taxes) PRICES INCLUDE AIRFARE Experience the unique blend of East and West that has made Hong Kong a favorite destination the world over. Quite simply, Hong Kong is one of the most exciting places on earth to visit. ROMANTIC PARIS & BEYOND April (9 days/7 nights) $1,599 Per person, double occupancy (plus taxes) This beautiful city of parks, boulevards, bridges, monuments and museums leaves one with long lasting impressions and wonderful memories. CHINA TREASURES & THE YANGTZE RIVER April - June (13 days/11 nights) From $3,199 Per person, double occupancy (plus taxes) Visit Shanghai, Xi an, and Beijing and cruise the incomparable Yangtze River. The resplendent grandeur of China s ancient dynasties beckon you across 3,000 years of history, art and the struggle for perfection. INCLUDED FEATURES Round-trip air transportation First-class or superior first-class hotels Transfers between airports and hotels, and more Available to Members, Their Families and Friends For additional information and a color brochure contact: 8000 West 78th Street, Suite 345 Minneapolis, MN (952) or Toll Free Missouri Medicine March/April 2006 Vol. 103 No. 2

6 Perspective CA-MRSA: An Old Foe Develops New Fangs by James H. Hinrichs, MD Futur uture e weapons against the continued evolution of this important pathogen may well have to be in the fields of vaccine resear esearch and immunologic therapy. James H. Hinrichs, MD, 26-year MSMA member and Editorial Board member in Infectious Diseases. He practices at Sisters of St. Mary s St. Joseph Health Center/Hospital West, St. Charles. In the last several years, in Missouri, the nation, and internationally, an explosive increase in the incidence of community-associated Methicillin Resistant Staphylococcus aureus (CA- MRSA) infections has occurred 1. MRSA infections have previously primarily been considered a hospital or nursing home associated infection (nosocomial), and have been primarily been treated with Vancomycin. The major concern has been the appearance of several cases of Vancomycin-resistant Staphylococcus aureus reported around the country, generally in dialysis patients or patients that have had frequent exposure to Vancomycin therapy. The fear of this organism, and the appearance of Vancomycin-resistant Enterococcus (VRE), has led hospitals to isolate these patients and attempt to prevent further spread. The appearance of isolates in the community, with distinctive antibiotic resistance patterns and clinical syndromes, has been unexpected and indications the rapid evolution of this dangerous pathogen. Microbiology and Epidemiology of CA-MRSA The appearance of the new community associated MRSA isolates may herald a major change in the organism, perhaps in response to widespread antibiotic use in the community, but perhaps new fitness promoting factors that the organism has acquired. The dramatic increase in this organism is illustrated in Table 1 of community associated MRSA infections at St. Joseph Health Center in St. Charles, Missouri, over the last three years. Research into this new isolate reveals several interesting developments that differentiate it from HA-MRSA (Hospital Acquired MRSA). Methicillin resistance is mediated via a chromosomally incorporated resistance gene, meca, which confers altered binding of B-lactams to penicillin binding protein 2a. This gene is packaged in a cassette called the staphylococcal cassette cartridge (SCC), which aids in successful chromosomal incorporation 2. Until 2002, only 3 SCC types were known, but the new CA-MRSA strains appear to have a fourth type. This cassette is smaller, and does not confer as much antibiotic resistance as the other three, thus likely explaining the wider antibiotic susceptibility of this new strain. It also would indicate that this new strain in all likelihood did not evolve from the HA- MRSA strains, but represents evolution within the community 3, likely from a Methicillin-sensitive strain. A newly described toxin may be more responsible than anything for the clinical syndromes that have focused attention on this organism among pediatricians, surgeons and emergency room physicians. It predominantly is associated with skin and soft tissue infections, boils, deep subcutaneous March/April 2006 Vol. 103 No. 2 Missouri Medicine 129

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