Herschel R. Lessin MD, FAAP Senior Partner The Children s Medical Group Poughkeepsie, NY 25 Years Experience as an Expert Witness For Both Defense and Planitiff Disclosure I have been an expert witness in Pediatric Malpractice issues for 25 years, reviewing for both plaintiff and defense I am a senior consultant with the Verden Group. I do not intend to discuss an unapproved or investigative use of a commercial product or device. I am not an attorney and I am not qualified to answer legal questions. The information provided during this session is general in scope and educational in content. This presentation is a general overview and should not be construed as providing specific legal advice. Different facts and circumstances may dictate that a different rule or law may apply. If you need a legal opinion you will need to contact your legal advisor in your own state. Section on Administration and Practice Management (SOAPM) Home to pediatricians interested or involved with the management or administration of pediatric practices. Provides both basic and cutting edge administration and practice management information to its members. BENEFITS: SOAPM LISTSERV discussions SOAPM s newsletter soapmnews (bi-annual) Pediatric Practice Managers Alliance SOAPM NCE programs Open to all FAAPs, Resident Fellows, and eligible Affiliate Members with an interest or active in practice management. Applications for Fellows and Affiliate Members are available on the AAP Member Center at: http://www.aap.org/sections/soapm Practice Support Page @ AAP.ORG A centralized, on-line Pediatric Practice Management resource that supports Pediatricians and practice managers in running a practice that is fiscally sound and efficient, and provides quality health care to children and families. Sample office documents- can be modified and 5 key areas: Practice Basics, Payment and Finance, Office Operations, Quality Improvement, and Patient Management that includes the following: Tools and resources- addresses hot topic issues (e.g Retail based Clinics, vaccine payment, private payer negotiations) used at your practice Handbooks- Starting in Practice, Payment for Telephone Care Personnel- sample job descriptions The AAP Practice Support Page can be accessed directly at www.aap.org/en-us/professional-resources/practice-support Herschel R. Lessin MD, FAAP Senior Partner The Children s Medical Group Poughkeepsie, NY 25 Years Experience as an Expert Witness For Both Defense and Planitiff
THE EXPERT WITNESS HOW DO I SLEEP AT NIGHT? Being a physician is like being the president of a diving board company you are going to get sued Erle Peacock Jr. MD, JD We need honest doctors to do this It provides a service to the profession It is educational and helpful to my practice It is educational and helpful to me It is interesting and challenging It pays well (but is not for the faint of heart, and don t give up your day job) THE EXPERT WITNESS Assists the Court and the Triers of Fact i.e. THE JURY Submits an expert opinion and its basis Preventing a Malpractice Action: BULLET-PROOFING WHAT YOU DO Tells the truth Does not become an advocate BULLET-PROOFING WHAT YOU DO BAD OUTCOME LAWSUIT ATTITUDE There is only one lawsuit filed for each 7.6 medically negligent acts. (NEJM 7/25/91)
A study comparing high suit vs. low suit OB/GYN s showed: NO DIFFERENCE IN QUALITY OF CARE!!! What was the difference? BEDSIDE MANNER!! 25% of MD s did not solicit the patient s concerns - why are you here and how can I help? When they did ask patient s concerns, patients were allowed to complete their statements only 28% of the time. Patients were allowed to speak an average of 23 seconds before they were interrupted by the MD. It only took an average of 6 more seconds for the patient to finish their story. (Marvel, et al JAMA 28:81 No. 3 1999) Primary care MD s who were never sued: Educated patients about what to expect Laughed & used humor (Is the patient laughing?) Solicited patient s opinions Checked patient s understanding Encouraged patients to talk Spent more time on routine visits (Levinson,JAMA 2/19/97) I always felt rushed He didn t listen He didn t have any concern for me as a person My doctor couldn t be reached by phone I waited 45 minutes to be seen ( Hickson, et al, JAMA, 11/94) A review of plaintiff depositions revealed that 71% of lawsuits were triggered by problematic relationships: Lack of Caring Unwillingness to Collaborate with Patient/Family Unavailability Discounting Concerns of Patient/Family Poor Delivery of Information Lack of Understanding of Patient/Family Perspective (Beckman, et al, ArchIntMed:1994:154:1365-1370) A Good Patient Relationship with Trust and Communication: DECREASED CLAIMS AFTER POOR MEDICAL OUTCOME Adverse outcome plus poor relationship: LAWSUIT
THE DISNEY CONCEPT OF PEDIATRIC PRACTICE: IT S SHOWTIME!! DON T BE COMPLACENT: EVERYTHING IS NOT ROUTINE!! The Case of the 1-year old with Viral Sx The Case of the Really Bad Mono The Case of the Persistant Stomach Virus DON T BE LAZY: BAD THINGS HAPPEN ON SUPERBOWL SUNDAY GROWTH CHARTS ARE THERE FOR A REASON PICK UP THE PHONE DON T BE LAZY: The Case of the SCFE Delayed The Case of the Multiply Admitted Asthmatic The Case of Fainting Teenager DO A COMPLETE EXAM DOCUMENT EVERYTHING HAVE DEFINED PROCESSES AND MAKE SURE THAT THEY WORK What/How you write in the chart How you transfer information How you track labs How you record phone calls How you do follow up How you record your thoughts HAVE DEFINED PROCESSES AND MAKE SURE THAT THEY WORK The Case of the Missing Culture The Case of the Lost Referral The Case of the State Screening
DOCUMENT, DOCUMENT, DOCUMENT! Template your charts Document your thinking Record ALL patient contacts, especially phone calls Guarantee and document follow-up, labs, referrals And Do it All in the 10 Minutes You Get to See the Patient. KNOW YOUR MEDICINE: Don t be a Double O Doc The Case of the Terrible Pain The Case of the Rh Baby The Case of the Febrile Neonate The Case of the Really Bad Chicken Pox Defending a Malpractice Action: BULLET-PROOFING HOW YOU REACT AND PERFORM IN/OUT OF COURT Steps in a Malpractice Suit Request for Records Expert Review Notice of Claim Subpoena Discovery Deposition Trial Elements a Plaintiff Must Prove Duty Deviation from the Standard of Care Proximate Cause Damages How It Feels When You Get Your First Subpoena: You ve just been gut-punched Panic Fear Let me see that chart! Anger An attack on who you ARE A loss of control What should I do now?
How It Feels When You Get Your First Subpoena: DO NOT: Call the patient Call the attorney Discuss the case with anyone And most important: NEVER, EVER ALTER THE CHART!! DO: How It Feels When You Get Your First Subpoena: Pull the chart and put it in a safe place Notify your insurance carrier Review the chart and write down everything you remember at the time And most important: NEVER, EVER ALTER THE CHART!! The Difference Between the Courtroom and the Exam Room Black and White vs. Shades of Gray To a Reasonable Degree of Medical Certainty A Preponderance of the Evidence vs. Beyond a Reasonable Doubt Definition of truth Be Your Own Expert Witness Educate Your Attorney He may be experienced but he is not a physician Do literature searches Read the case like you were a plaintiff s expert: Find the problem areas Help evaluate opposing expert opinions Be Your Own Expert Witness Let Your Attorney Educate You Take your attorney s advice as to: How to dress How to behave How to answer questions YOU ARE NOT IN CONTROL!! This is his world: You do not know better than he does!! Purpose of Depositions To gather information for opposing counsel as to: Your Qualifications Your Actions Your view of the facts Your Opinions
Purpose of Depositions Purpose of Depositions To Pin you down To evaluate your behavior at trial: Credibility, sympathy,poise,believability Communication skills Likeability, organization, preparation Demeanor (arrogant, flippant, composed) To probe & irritate your vulnerable spots TO DETERMINE THE MONETARY VALUE OF THE CASE Importance of Depositions 98% of Civil Trials are Settled Your deposition is as important, if not more important than a trial Tips for Testimony: Deposition Tell the truth Actively listen to the question and words Listen to the whole question before answering Answer the question that is asked, not the one you think should have been asked Pause and think briefly before answering Do not educate opposing counsel at depo, he will not be dazzled by your expertise Prepare, Prepare, Prepare. Tips for Testimony: Deposition Remain Calm and controlled. Don t argue with counsel Don t be arrogant, flippant, or sarcastic Never guess or estimate If you don t know, or can t remember, say so Avoid absolute words (all, everything) Avoid hedge words (could, may,i think, it seems, its possible, I suspect, I assume, etc.) Listen if your attorney objects. He is giving you a hint Stay in the moment, do not anticipate Deposition Tactics Act emotionally opposite the attorney Make concessions if needed Be comfortable/take breaks Everything you write/say is discoverable Take your time with questions/documents (unless Video deposition) Know your facts and dates and names Answer the question asked/do not educate Yes/No answers Compound Questions Putting words in your mouth
Tips for Testimony: Trial Direct Examination - Your atty. makes your case PREPARE AND PRACTICE Cross Examination - Plaintiff attorney tries to have you make HIS case Create free flowing anxiety Distract/Confuse/Upset you Give the impression of who won or lost Make you defer to his experts Make you appear evasive or defensive Tips for Testimony: Trial Talk to the jury, but don t stare Teach the jury/likeability is the key/no jargon Avoid Dr. Jekyll/Mr. Hyde with cross exam Resist mischaracterizations and misstatements If you don t understand, ask counsel to clarify the question Know what you said in your deposition Stop talking if your attorney objects Watch your body language Be cool, but don t freeze You know more medicine than the attorneys Teach it to the jury and assist your attorney Your attorney knows more law than you Listen to him and do what he says Work at being helpful to your case Doctors win the vast majority of trials, but it is the preparation that counts Be open to settlement if it looks like you re going to lose or should lose It is better to manage your risk than to risk your career, your livelihood and your mental health PREVENTION IS THE BEST MEDICINE!! Herschel R. Lessin MD, FAAP Senior Partner The Children s Medical Group Poughkeepsie, NY 25 Years Experience as an Expert Witness For Both Defense and Planitiff