Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008

scored a point. The goal of this style of cross-examination obviously is to intimidate the witness. This type of plaintiff’s attorney is trying to upset the physician, and accordingly the physician should just keep trying to do his best to answer each question as reasonably as possible without allowing the histrionics of the questioner to bother him or her. Frankly, jurors generally do not like an attorney who comes across as a bully, so if the physician keeps answering questions calmly and reasonably, in the face of this style of questioner, the physician will probably end up doing very well.

Another style of cross-examination is what I categorize as the “ingratiating questioner.” This type of attorney will attempt to get the physician to say “yes” to many innocuous questions, thereby trying to give the impression to the jury that the physician’s repeated answer of “yes” suggests that this attorney is actually scoring points. This attorney often will move gradually from innocuous questions to more difficult questions with the hope that the physician will continue to give “yes” answers. If the physician does not, this questioner will quickly return to the innocuous questions, once again getting the physician to repeatedly state “yes.” This approach is often used when the plaintiff’s attorney has very little merit to his case and therefore is not able to challenge the defendant physician with questions that go to the true merits of the case.

The most dangerous type of plaintiff’s attorney is the one I categorize as the “prepared questioner.” This type of attorney usually has taken an effective deposition and knows in advance, based on the deposition, medical records, medical literature, or other sources, the answer to each question that he asks at trial. The “prepared questioner” is the most dangerous type because he or she will always have something to back up whatever question is asked.

The Defense Expert’s Testimony

In the typical professional negligence case, the defense expert will testify after the defendant physician. It is important that the defense attorney bring the defense expert up to speed regarding what occurred during the testimony of the defendant physician. It is likely that many of the questions that the plaintiff’s attorney asked the defendant will also be asked of the defense expert. Accordingly, if time allows between the testimony of the defendant physician and the defense expert, this is an excellent opportunity for the expert witness to be prepared for the type of questioning to expect from the opposing attorney.

The decision regarding which expert to use is a very important one. An expert witness for the defendant physician should have a good curriculum vitae. However, it is equally, if not more, important that an expert have the ability to communicate effectively with lay jurors. Some physicians may be extremely well qualified but nevertheless have a hard time communicating to lay jurors in a trial setting. Defense experts should have the ability to make difficult medical concepts understandable to a lay jury. Experts who use complex, technical, medical language, which may

fascinate a group of physicians, may be too technical for a lay jury and leave them confused and unconvinced.

Summations

Once the testimony is complete and all nontestimonial evidence has been offered, each attorney has the opportunity to argue on summation why his or her client should prevail. The summations tend to be much more argumentative than the opening statements. Demonstrative evidence, such as enlarged views of important records or diagrams, can be particularly helpful to accentuate favorable points during summation.

I have listened to summations ranging in length from 15 minutes to 6 hours. The length of the summation is often a function of the complexity of the case. However, in the typical medical negligence case I have found that summations usually range from 30 minutes to an hour and a half. In my opinion, it is very unlikely that the attention of the jury will be held after about 90 minutes. Many attorneys attempt not to speak much longer than this during their summations because they believe that the jurors’ attention span will be exceeded.

Settlement Negotiations

A certain percentage of cases do involve professional negligence, and usually these cases are settled prior to trial. Typically, the defense attorney will obtain expert review(s) that provide the defense attorney with an opinion as to whether the treatment rendered was proper. If multiple experts report that the treatment rendered was not proper, the attorney will typically recommend that the case be settled. Expert opinions may still be obtained that focus on weaknesses in the plaintiff’s case and help your defense attorney attain a settlement which is as favorable as possible in the circumstances.

Typically after the weaknesses in the plaintiff’s case have been highlighted to the plaintiff’s counsel, settlement negotiations will begin, using the weaknesses in the plaintiff’s case as leverage to try to get the case settled at as reasonable a level as is possible. Physicians should advise their attorney of any weaknesses in the plaintiff’s case that can be emphasized in an effort to reduce the settlement value of the case.

Statute of Limitations

The statute of limitations is the time period within which a case must be filed or else it is barred from being pursued. Physicians should discuss with their attorney whether any claim brought against them might be time barred by this statute in the jurisdiction in which the case is filed.

The purpose of the statute of limitations is to require that cases be brought within a time period when witnesses are still available, memories have not grown dim, and evidence has not been lost. The goals of the statute are to achieve security and stability in human affairs and to ensure that cases are not tried on the basis of stale evidence.

Such statutes determine the time period during which a claim must be brought. However, many state courts have concluded that because the statute of limitations is intended to be equitable in nature, the time period set forth should not be applied mechanically. These courts consider whether the plaintiff was unable to “discover” the fact that there was medical malpractice and whether the plaintiff brought the suit in a reasonably timely fashion after the plaintiff was able to “discover” that there was malpractice. Also, the defendant may be required to demonstrate prejudice due to the delayed notice of the claim in order to have a case dismissed on the basis of the statute of limitations.

The classic case for extending the time within which a claim may be brought based on the so-called discovery rule involves situations in which a foreign body is left within a patient at the time of surgery and the patient does not discover the presence of the foreign body until after the time period set forth in the statute. In these “foreign body” cases, the courts stress that the patient is ignorant of the foreign body during the customary period of limitations. Accordingly, if the patient acts in a reasonably expeditious fashion after discovery of the foreign body, the claim should not be barred.

In some jurisdictions, the discovery rule has been extended beyond “foreign body” cases to other types of medical malpractice matters. In some jurisdictions, defense attorneys joke that the courts have so attenuated the statute of limitations by liberal application of the discovery rule that the original intent of the legislature to have a statute of repose has been vitiated and there really is no such statute. For example, in a case in New Jersey it was concluded that a cause of action did not accrue until a patient was aware not only that he had been injured by a doctor but also that he suffered the injury because of the doctor’s fault. Even though years went by after the period set by the statute of limitations had passed while plaintiff searched for an expert willing to support his preferred theory of liability, the case was held not to be barred by the statute. The statute of limitations is also frequently extended for infants as well as for patients who are deemed to be incompetent.

For a physician involved in a medical malpractice case, the defense attorney should handle all issues related to the statute of limitations, and hence it is not crucial to know all the nuances of the law of your state. However, if an extended time period has passed before you receive notice of a claim against you, it would be wise to discuss with your attorney whether there is a basis to have the case dismissed based on the statute of limitations.

Generally, we advise taking the deposition of the plaintiff before filing a motion to dismiss based on the statute of limitations. In this way, the defense attorney can question the plaintiff in a way that will establish whether there is a basis upon which the plaintiff can claim application of the “discovery rule”. Once the motion to dismiss based on the statute is brought, the plaintiff will have an opportunity to

think about reasons why he allegedly was unable to “discover” that there was a basis to bring the claim. If questions relating to “discovery” of the claim are asked at the deposition before any motion has been filed and thus at a time when the plaintiff may not be prepared, the plaintiff may be locked into answers that prevent the plaintiff from subsequently arguing that the time set forth in the statute should be extended based on the “discovery rule.”

When to Hire Your Own Attorney

In a typical medical malpractice case, the insurance carrier will assign a defense attorney to defend you. It is important that the physician confirm that the attorney who has been assigned is someone who devotes a significant percentage of his or her practice to defending medical malpractice cases. The defense of medical malpractice cases is a highly specialized area, and insurance companies usually select attorneys who specialize in this area. It is certainly reasonable for the physician to inquire about the background of the assigned attorney to determine the attorney’s level of experience. Many insurance companies will respect a request for a particular attorney, at least among attorneys a company has preapproved as malpractice specialists.

There may be occasions when a physician has to consider whether to hire his own attorney, for example, when a theory for damages is raised by the plaintiff which is not covered by the insurance policy. One such situation may be, if the plaintiff is claiming that a physician did something intentionally wrong, as opposed to merely being negligent. In these circumstances, a letter from the insurance company is usually sent to notify the physician that he will not be covered for any awards for damages arising out of theories premised upon intentional acts. In this case, the physician should consider retaining his own counsel.

Another situation that will typically trigger a letter from an insurance company suggesting that the physician consider retaining his own counsel occurs when the plaintiff makes a demand in excess of the insurance coverage. The initial demands made by the plaintiff are often unrealistically high, but a demand in excess of the policy still triggers a duty on the part of the insurance company to notify the defendant physician that the demand exceeds the coverage. The carrier will typically recommend that the insured physician consider retaining personal counsel to protect himself regarding any amounts claimed in excess of the policy limits.

The physician should discuss any situation involving the potential for exposure not covered by insurance with the defense attorney assigned to his cases as well as with personal counsel. In many instances, the assigned defense attorney will be able to resolve the issues raised by an unrealistic demand or a claim that there was an intentional action on the physician’s part, by merely speaking with the plaintiff’s counsel and asking him to drop such a claim if it is without merit, thereby helping the physician to avoid expending a great amount of money dealing with personal counsel. Also, a discussion with the assigned defense counsel and personal counsel may lead the physician to conclude that the demand made by the plaintiff is extremely excessive and unrealistic in the

circumstances and the likelihood of any verdict in excess of the insurance coverage is so remote that there is no need on a cost/ benefit analysis for personal counsel to become actively involved. In some instances, there may be very little that personal counsel can add to the preparation of the case beyond what is already being done by the attorney assigned by the insurance carrier. Accordingly, there is a cost/benefit analysis that the physician must undertake to determine whether it would be beneficial to engage personal counsel to become actively involved simply because a plaintiff makes an excessive and unrealistic demand.

Likewise, a plaintiff’s claims of intentional actions by a physician may be frivolous and the physician may be reassured by the assigned defense counsel and personal counsel that these claims will almost certainly be dropped voluntarily by the plaintiff; if they are not, a motion will be made to strike such claims. In this instance, once again, a cost/benefit analysis must be undertaken to determine whether it is necessary to expend significant amount of money on personal counsel to become actively involved when it is extremely likely that the count will be dropped or stricken before the case goes to trial. To a great extent, the decision as to how active personal counsel should be is often a function of the level of confidence that the physician has in the defense attorney assigned by the insurance company and the likelihood that any counts that are not covered by insurance will be dismissed before trial.

Personal counsel is frequently needed when there is a conflict between the physician’s desire to settle a case and the insurance company’s desire to try the case. For example, a physician may have $1 million in coverage in a case where the value of the case, if tried and lost, is in the range of $5 to $10 million. A physician may determine that he wishes to protect himself from personal exposure by having the case settled, while the insurance company may feel that the case is medically defensible and therefore one that should be tried. In these circumstances, personal counsel’s involvement is extremely important. Some states provide protection to the physician in the event that the insurance company insists upon trying the case against the wishes of the insured physician and a verdict in excess of the policy limits is obtained by the plaintiff. The courts will look at the “good faith” of the insurance company in proceeding to trial in a case where they knew that a verdict would likely be in excess of the insurance coverage if the case was lost and the physician demanded that the case be settled prior to trial.

Personal counsel can provide guidance to the physician prior to trial if a situation arises where the desire of the physician regarding settlement is in conflict with the desire of the insurance company. Indeed, in any situation where there is a conflict between the physician’s desire and the desire of the insurance company regarding how the case is being handled, personal counsel should be consulted.

Physician–Patient Relationship: When Does it Start? When Should it End?

Once a physician undertakes to treat a patient, the physician may not abandon the patient. Generally, abandonment consists of a failure by the physician to continue to treat when treatment is still needed in a situation in which the physician has assumed responsibility and from which he has not been properly relieved.

In general, the courts are very liberal in establishing a physician–patient relationship. Accordingly, once a physician undertakes treatment of any nature, it is important to know that the physician may risk a claim of abandonment if the physician does not provide the patient with reasonable notice that he or she is withdrawing from the care of the patient so as to permit the patient to obtain care from another physician.

Although a physician who has been employed to treat a patient is generally under no duty to continue treatment forever, many courts have concluded that it would be unfair to the patient for the physician to withdraw from treatment without giving the patient a reasonable opportunity to obtain care elsewhere. When physicians contact us regarding withdrawing as a treating doctor, we generally provide them with the following procedure.

We recommend that physicians notify the patient in writing that they intend to withdraw from providing further care. In the written statement (which should be sent certified mail, return receipt requested), the physician should advise the patient that he can no longer continue to provide treatment and expects that the patient will therefore seek care elsewhere. The physician should indicate that while the patient is in the process of seeking care elsewhere, if there is any emergent circumstance, of course the physician will help the patient. However, the physician expects that the patient will actively seek other care and will obtain other care in the near future.

We also recommend that the physician include the names of other qualified physicians in the same geographic area as the patient. The physician can further remind the patient that he or she can consult with the local medical society, the local hospital, or other reference sources in order to find someone of his or her own choosing. We generally recommend that the physician include a statement that it will be expected that the patient will be under the care of another physician within a set period of time, often a month (although this can vary with the circumstances), and it will be presumed that after this time the patient has obtained alternate care, barring some extraordinary circumstances that the patient should bring to the physician’s attention.

Good Samaritan Laws

Good Samaritan laws have been enacted in an effort to encourage the rendering of medical care to those who need it, but otherwise might not receive it, by persons who come upon such victims by chance. If you have provided care to a patient voluntarily in a circumstance that you believe might put you in the position of a “good Samaritan,” you should discuss with your defense attorney whether there is a good Samaritan statute in your state that might immunize you from a lawsuit.

Unfortunately, the scope of good Samaritan statues is often not as broad as physicians would like. For example, at least one court has determined that a good Samaritan act in that jurisdiction cannot be invoked to immunize a hospital physician who assists a patient at a hospital during a medical emergency. The theory of the court was that the physician

rendered aid in a fully equipped and staffed hospital to a patient who had been admitted for the purpose of receiving medical care, and therefore the good Samaritan act did not apply to immunize the physician from the patient’s medical malpractice suit. The point, however, is that if the circumstances in which you treated a patient who has brought a suit against you were such that you think that there is even a possibility that a good Samaritan act might apply, this issue should be raised with your defense attorney.

Damages

In the typical medical malpractice claim, the plaintiff will be seeking compensatory damages for alleged acts of negligence. Compensatory damages are damages that are designed to reimburse the plaintiff, to the extent money is able to do so, for injuries that are proximately caused by the defendant physician’s negligence. Compensatory damages can include pain and suffering, lost wages, medical expenses, emotional distress, and other theories for damages that vary from state to state.

In some cases, there may be a claim made for punitive damages. Punitive damages are damages that are intended to punish the wrongdoer in an effort to prevent the wrongdoer from repeating the offending act. Punitive damages typically flow from actions that were intentional, wanton, willful, or grossly negligent, not merely negligent.

When punitive damages are claimed, they typically will not be covered by the insurance policy. As discussed earlier, this will typically trigger a letter from the insurance carrier advising that it will not indemnify the physician for any award of punitive damages, and hence the physician should consult personal counsel.

As an aside, there are many attorneys who hold themselves out as experts in “asset protection.” These attorneys will work with the physician to situate his or her assets in a manner that it will be more difficult for a plaintiff’s attorney to get to. Generally, this asset protection plan must already be in effect before the claim is brought in order to be effective. To our knowledge, these asset protection plans have not been completely tested so their effectiveness is not entirely clear. In practice, many plaintiffs’ attorneys usually accept the insurance coverage as payment in full for any claims and do not typically go after personal assets of a physician. However, particularly when a physician is in a very high-risk specialty or jurisdiction, it may be worthwhile to meet with an attorney who specializes in asset protection. Even if these programs are not l00% effective, the more difficult it is for any plaintiff to get to personal assets, the better.

Joint and Several Liability

Joint and several liability simply means that when several defendants are found liable, each is liable for the entire amount recovered. The plaintiff can select from whom to try to collect. For example, if three physicians are found liable, the plaintiff could choose to collect the entire amount from one of the three physicians. The

This page intentionally blank

theory is that it should be made easy for the innocent victim to collect from the culpable parties, and hence the plaintiff can choose to collect the entire award from any one of the three physicians found to be liable.

This principle of law has led to outcomes in which a party who was found to be only one percent responsible was forced to pay for all or most of the damages. Some states have modified these harsh rules by statute. It is recommended that physicians consult with their defense attorney to determine what rules are applied in their jurisdiction.

Comparative Versus Contributory Negligence

In some cases, a plaintiff may bring suit against a physician claiming that the actions of the physician were not reasonable in the circumstances. In reality, however, the patient may have acted unreasonably and this is the reason for the patient’s injuries.

Contributory negligence means that the plaintiff did not act reasonably in the circumstances for his own protection and safety. In some jurisdictions, contributory negligence by the plaintiff may bar all recovery. However, other jurisdictions use comparative negligence, which means that the fault of the physician and the fault of the plaintiff will be apportioned. In other words, the negligence of the patient will not be a complete bar to recovery, but the recovery will be reduced to the extent that the plaintiff’s own actions contributed to the harm.

Your defense attorney should be fully familiar with the comparative negligence or contributory negligence law in the jurisdiction in which your case arises. In the event that there was any negligence on the part of the plaintiff, you should alert your attorney in order to allow him to take any legal actions that are indicated.

One of the difficult decisions that defense attorneys often have to make is whether to claim that a severely injured plaintiff is responsible for his own injuries. For example, if a plaintiff is paralyzed from the neck down and his contribution to these injuries is minor, your defense attorney may decide that the jury would be alienated if it is actively argued that the patient contributed in a small way to the ultimate injuries. Hence, a decision as to whether to argue comparative negligence at trial is often a very difficult judgment. In some cases, a defense attorney may decide to bring the negligence of the plaintiff to the attention of the jury as part of the overall factual situation but not ask the court to charge the jury that the defense is claiming comparative negligence by the plaintiff.

Note

“The material contained in this publication is for educational purposes only and is not intended to serve as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research. Accordingly, this material should not be relied upon as legal advice for any individual legal action.