Ординатура / Офтальмология / Английские материалы / Risk Prevention in Ophthalmology_Kraushar_2008
.pdfChapter 3
The Plaintiff’s Attorney
Lee S. Goldsmith
Introduction
As is often the case, perception and reality, when associated with a given set of circumstances, have no common ground. This appears to be especially true when applied to medical negligence litigation. The physician’s perception of the problem differs from that of the attorney and most certainly differs from that of the patient.
No patient enters into a physician–patient relationship with thoughts of future litigation. There is a condition that is a problem or a perceived problem that warrants medical care and attention. The patient is seeking care from a professional in whom he will place his trust, even if there has been no past relationship. The need for care is present, and the trust is given. However, not all patients enter into the relationship blindly, and some assert their right to question decisions, especially as problems and levels of anxiety rise. The responses that the patient receives from the physician often determine the ensuing events.
The patient and often family enter into the relationship with a level of anxiety independent of the level of education, the nature of the problem, and prior information that has been obtained or given. Notwithstanding the amount of research the patient and family have done or the amount of information that they have received from prior practitioners, the patient and family want answers and have questions. This need for information will compete with the amount of time that the physician has available or wants to give to the situation, and the resolution should be patient dependent. A patient with a cataract to be removed might demand an hour of time to obtain an explanation and then come back with additional questions. Another patient with glaucoma might require 15 minutes for an explanation, although an hour has been set aside. Indeed, the situation might be reversed. However, if the patient demanding an hour is only given 15 minutes, the seeds of discontent may have been sown. Each patient has to be treated individually, but consideration must be given to individual differences and needs and they cannot be dismissed casually.
Studies have indicated that the degree of patient recall is limited after an informed consent is given. Because of anxiety, the memory lapses are understandable and this may well occur with members of the family, but certain facts remain. How long will
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the surgery take? The time may be 1 hour and this is the information given to the family. However, the family is sitting outside the operating suite. When the 1 hour passes and there is a second or a third with no information being given, anxiety rises and questions will be asked and need to be answered. A “disappearing act” never works. Sending an assistant, a nurse, or a resident is never satisfactory. The person with whom they had the discussion has to show up and answer questions. If that does not occur, another seed is planted and discontent rises.
Any physician who starts the day thinking about prospective patients bringing suit should probably not be practicing medicine. This negativity and hostility will be passed to the patient and create an environment that will encourage litigation. A physician who overbooks, does not keep appointment times, and rushes patients in and out of the office is potentially creating problems. The patients will forget these problems if the outcome is successful but will remember every slight and every inconsiderate action if there is a problem. Physicians should answer questions and be responsive even with the difficult patient and especially if there has been a problem. Good medicine avoids litigation. Good communication averts litigation.
As a result of the changes in medical practice over the past 15 years, less time is being spent with the individual patient. Getting authorizations to provide care may be difficult, and delays in treatment lead to patient frustrations. The patients or family members cannot take out their grief with the insurance company so the physician will become suspect. Care not being given because the physician will not be paid can be perceived as care not being given because the physician is only interested in money. In addition, as the patient reads about physicians in the press relating to Medicare or Medicaid fraud and physicians read about malpractice lawsuits, the physician–patient relationship may be affected. Physicians state that they would never respond at the time of an accident because they may be sued, but they either forgot or do not know that physicians are not sued when they are good Samaritans. We as lawyers know that we will not win. Every time a physician does act as a good Samaritan, the good press that is engendered helps every other physician in every situation.
A typical situation in which an attorney is called is when a combination of events occurs, that is, an untoward event or a patient or family member becomes upset, and these events are combined with an unresponsive or hostile physician. The physician has the initial relationship with the patient and family and can usually control the actions of the patient and family, but when physicians do not fulfill their obligations it leaves a vacuum to be filled by the attorney to the attorney’s benefit. Fact patterns seem to indicate that one of the physicians involved in a case either directly or indirectly goads the patient or the family to seek legal advice. The attorney is no more than the receptacle for the ill will and anger that has escaped the physician’s control. When the patient is no longer in the hands of the physician and is in the hands of the attorney, the attorney becomes the decision maker.
In the Veterans Administration hospital system and in some states there is now the requirement that the physician tell the patient or the patient’s family if there has been a medical error. It is always important to speak to the patient and/or family after an incident. If the truth is not possible, tell them what you can but do not lie.
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Patients and their families are not stupid, and with the Internet available they can check on the information they have been given. When a physician does not talk to the patient or family, it is disastrous. When the patient and family are lied to it is even worse and will ensure legal intervention.
An example, although unrelated to ophthalmology is as follows: a patient slipped and fell at home and suffered a subdural hematoma. The treating physicians concerned about potential seizures after surgery prescribed intravenous Dilantin. Intravenous Dilantin comes in two forms: Dilantin dissolved in alcohol or in propylphenylhydantoin. The latter costs about six times the former but is absolutely safe intravenously. The former is dangerous. If the mixture extravasates, there is the potential to lose a limb. The patient lost her hand, and the family was told it was due to an allergic reaction. Both of the patient’s daughters have their PhDs. The hospital and doctor now have a major lawsuit exacerbated by their lying to the family coupled with the pharmacy problems. This was a family who might well have never consulted an attorney had they been told the truth in the first place. They truly do not believe in litigation.
Case Analysis
The experienced attorney is probably the potential defendant’s best friend. The attorney is interested in two things and in the following order. First, the attorney is interested in the nature and extent of the injury. The extent of the potential damages will determine whether any consideration is given to potential liability. The handling of medical malpractice cases is extremely costly. Money has to be expended to obtain records, to have experts review those records, and to hire court reporters for depositions, life care planners, and other potential damage witnesses. The basic case cost will run between $20,000 and $100,000. Unless a potential case can ultimately achieve damages in excess of at least $300,000, the patient’s claim will often not be considered.
Second, the attorney is interested in the issue of liability. How clear is the potential for liability? How difficult will it be to prove liability in the particular case? The degree of difficulty in proving liability will be factored against the potential damages when the firm decides whether or not to accept the case. The greater the damages, the cloudier the potential liability can be, and, the smaller the potential damages, the clearer the potential liability must appear to the reviewer and ultimately the jury. Experienced lawyers know how to evaluate the damages in the individual case. What is an eye worth? What are two eyes worth?
Client Intake—History and Damages
The initial client interview is done in two phases. The first intake will generally be done by a paralegal. The purpose is to get the basic information in the shortest period of time.
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Who is involved? Who are the potential defendants, and are there any potential conflicts of interest? If a name is raised that can create a conflict of interest, the conversation with the potential client will probably end. A conflict of interest is present if the firm has represented the physician in the past or if the firm has worked with the physician as an expert in the past. An ancillary question is, who is the individual seeking counsel? Is the potential defendant a world-renowned physician whom every juror will know, or is he someone whom the potential jurors might not care to see as a patient?
What does the individual state is the problem? For example, “My husband underwent cataract surgery in the doctor’s office and died on the table.” This response will lead to follow-up questions.
What are the damages? The ultimate answer might vary with the state (jurisdiction), but the follow-up questions will be the same. “How old was your husband? Was he 40 or 80? Was he employed, or was he retired?” In most states, the 80-year- old retired male would not create sufficient damages to warrant litigation regardless of how clear the liability might ultimately be.
The information from the initial intake is then passed on to an attorney for a decision. The attorney will be looking at the record from two perspectives. Was there an act of omission? Was there an act of commission? An act of omission is a failure to act when action should be taken. Failure to order an eye examination for a premature infant receiving oxygen in a neonatal intensive care unit or failing to order antibiotics in the presence of an obvious infection would be acts of omission. An act of commission would include ordering the wrong antibiotics for an infection or taking a patient to the operating room when the procedure might be contraindicated.
If the information obtained in the initial intake warrants follow up, a formal interview will take place. This will be conducted by an attorney with the purpose of fleshing out the information gathered initially. This will also allow the attorney to evaluate the client to determine the client’s ultimate ability to testify and the impression he will make. It would be nice to say that ancillary factors do not influence case selection, but they must. What is the attitude toward malpractice cases in a given county? The attorney might consider the fact that the case would be tried in a rural and conservative county and the potential plaintiff is a drug using exconvict with tattoos over obvious portions of his body (e.g., “kill” on his knuckles and a skull on his forearm). Proving a case for this individual would be extremely difficult. The jurors would recoil from his presence only a few feet from them while they are in the jury box. It would be a very courageous attorney who would take on such a case in a conservative county. However, if the case involves a mother with minor children and she is permanently injured, the damages would be evident and she would be a very presentable witness.
Medical Records—Collection and Review
Based on the interviews and determinations, authorizations will have been obtained from the client. With these authorizations, the relevant medical records will be
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obtained. These are the records that surround the incident of initial concern. The initial materials will be used to focus in on the main events, and ultimately all of the medical records will have to be obtained. For example, if eye surgery was performed in a surgicenter or in a hospital, the records of the institution as well as the records of the treating physician and all of the subsequent treating physicians are obtained. The records of the subsequent physicians are important for the purposes of evaluating the nature and extent of the damages suffered.
Once the records are obtained, they will be analyzed. This can be a relatively complex process. A patient might be in the hospital for months, and the records may amount to hundreds of pages. The largest record obtained in my firm was 4000 pages thick. No matter how long the record, the issue of malpractice will amount to only a few pages involving acts of commission. If a problem arose during surgery, attention would be focused on the day of the surgery and all of the notes and forms prepared for that day.
Internal Analysis
The internal analysis will start with the numbering of the pages. This may be done through the copier if the records are scanned. Numbering the records allows for a thorough review and retrieval of specific pages at a later time. Concurrently the medical literature will be reviewed and a decision made as to whether the attorney believes there was negligence. If the answer is in the affirmative, the records will be sent to a medical expert for further review.
External Analysis
The attempt is usually made to find an expert who has specific knowledge in the area in question. Does the surgeon use a laser to treat patients? Is the potential defendant a neuroophthalmologist? The attempt is made to find an expert with knowledge of the specific area and who has had some experience in reviewing cases and testifying so that he or she would be expected to be able to handle and withstand cross-examination. Some practitioners, while very good in their profession, do not have the added skills needed to be an expert. The selection of the expert is the second most important decision after the decision to accept the case.
Decision to Proceed
Once an expert has agreed to testify, the decision will be made to proceed with the litigation. The complaint will be drafted and served on the physician(s). Defendants have many complaints about the process. Why is it that so many individuals are
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named as defendants? The easiest case for the plaintiff’s attorney is bringing into the case only one defendant. However, in a given set of circumstances, more than one physician may have seen the patient, and from the records no one can determine who did what with the patient or what the potential communications were among the defendants. Not knowing what will be said, or who may point the finger at a colleague, it is often necessary to name all involved physicians. If physician A is named and not physician B and the statute of limitations runs so that physician B cannot be included in the litigation and thereafter physician A blames physician B for the problems, then the plaintiff’s attorney could theoretically be liable for legal malpractice. Early in my career, I was assisting an attorney in a case in which an individual had a laminectomy and the vena cava was perforated from behind. The team realized the problem, a general surgeon was called in, and the patient was turned and opened. Despite the efforts of the general surgeon, the patient died on the table. The original attorney, wanting to be just and basing his case on the opinion of his expert, sued only the spine surgeon. The defense at the trial, through their expert, indicated that there was an error but had the general surgeon, who was not a defendant, done appropriate work the patient would not have died. The lawyer had committed malpractice by not naming and including the general surgeon in the lawsuit. At the time of the trial the statute of limitations had run so the general surgeon could not have been named a defendant. If the general surgeon had been sued he would have obviously felt abused, but under the circumstances of the state laws there would be no alternative. Therefore, the tendency among lawyers is to sue everybody and let the defendants fight it out among themselves.
The second major gripe that physician’s have is the manner in which they are served the summons and complaint. This often is the physician’s fault. The process server wants only to serve the summons and move on to serve the next one, day in and day out. Every summons served earns a fee. Therefore, the easier it is to serve a summons, the less time the server will spend on any individual summons. If the server enters a doctor’s office during office hours it is because a call has been made and the process server knows that the doctor will be there and will theoretically be able to accept the summons quietly and professionally. However, if the physician is unwilling to come out of his office or tries to avoid the process server, the process server will use whatever means necessary to accomplish the task. Our process servers are always instructed to speak to the receptionist and quietly ask to speak to the physician after explaining why he or she is there. However, if the physician does not come out after a reasonable period of time or tries to sneak out the back door, the server is allowed to use his or her own judgment.
Interrogatories
In most states, prepared sets of interrogatories will be served on both the plaintiff and defendant. Interrogatories are a series of questions that are prepared to give the opposing side some insight as to facts of the case. The interrogatories will often
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request additional information, and copies of the physician’s curriculum vitae will be attached as well as an additional copy of the records.
There is a tendency to review the materials requested prior to turning them over to the attorney for attachment. During this review there can be a tendency to make a curriculum vitae look better or to “amend” the records. Resist all temptations, and never ever “amend” the records. As a physician, you make notes in patient records, and this may be your total physical involvement with those records. You may be unaware that an insurance company has previously requested a copy of the records. In one case we obtained the copy of the records obtained by the insurance company and they were different from the original records. In another case, a subsequent treating physician requested the records, and we obtained a complete copy of that physician’s records as well as the records of the first physician. When compared with the originals, they were different. In a third case, the patient obtained a copy of the records; when this occurs, we always re-request the records and then compare. Sometimes physicians’ egos make them believe that they are brighter and know more than anyone else, and, no matter how often they are told not to change, alter, or amend records, they cannot control the impulse to exhibit superiority and proceed to amend the records with disastrous results for them and great results for us.
Another approach to the medical records comes with obtaining all the medical records as well as the billing records. The medical records are looked at carefully, and the billing records will be compared with the visits, pharmacy records will be compared with prescriptions, and when necessary the original records and their inks will be analyzed. The next best thing to finding changed records is to find charges to Medicare that are unrelated to treatment rendered. Getting an assist from either the state or federal government with insurance fraud is always advantageous. Although it may not have anything to do with quality of care, it does have a great deal to do with honesty and telling the truth.
Similar statements can be made regarding the curriculum vitae. The curriculum vitae might be brought up to date, but the document should not be embellished. As attorneys, while we might not have access to the National Practitioner Data Bank, there are alternate ways to get information. We can access the websites of the state boards of medical examiners and of the National Board of Medical Examiners. Two other easy sources of information are the physician’s own website and the website associated with the hospital where the physician has privileges. As a routine practice during the first visit by the client to our office, we access and copy information from the client’s the website to obtain a snapshot of the physician at a given point in time. A quick search will be made to determine whether the physician has written any articles that are not included in the curriculum vitae. Finally, we Google the physician’s name.
Prior to the depositions, the attorney has two goals. The first is to learn as much about the client as possible from as many sources as possible. In one case the defendant had written and submitted an article on the events involved in the case. The case was of interest, and the problems were worthy of publication. However, the article treated the situation in a manner that was directly opposite to the defendant’s subsequent medical testimony. In another case, the defendant basically set the standards in an article written on the subject matter of the lawsuit. Second and probably more important for the attorney is learning the medicine of the case as well as the defendant
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physician. The intelligent attorney will always be working with an expert. The attorney will start by reading the literature and relevant text materials. Then the attorney will sit down with the expert and spend the time reviewing the areas of negligence and discussing approaches to the deposition. By the time the deposition is taken, the attorney should be able to foresee every step in the procedure and be fully conversant with all of the records necessary for the deposition as well as the relevant literature.
Depositions
Many attorneys believe that the deposition is the most crucial part of the case and requires maximum preparation. Attorneys may join their experts in reviewing surgeries or videotapes of the type of surgery performed, reading the relevant literature, and discussing the case at length with the expert who has agreed to testify on behalf of the plaintiff.
The deposition questions will often be outlined in advance. How the deposition will be taken and the areas to be covered will vary depending on the rules of the particular jurisdiction and on the purpose for which the deposition is being taken. Ultimately, the process will be up to the individual attorney taking the deposition and on that individual’s techniques. I like to start a deposition with a question that I do not think will be anticipated for the purpose of getting the overly prepared witness flustered and more open to follow-up questions.
A rule that some attorneys follow is to ask every question they can think of and then additional questions. The problem with this technique is that questions that should be asked will often be omitted. Questions that should be asked include the following circumstances:
●All conversations between the witness and all other relevant witnesses
●Pertinent portions or questions in the curriculum vitae (including questions about failing the boards, retaking the boards, or articles written)
●The interpretation of laboratory tests and their relationship to the particular problem
●Areas of medicine not only directly pertinent to the theories of liability but also potentially relevant to any defense that might be raised
In our office, we will generally videotape the deposition so that the deposition can be reviewed and analyzed in the office after it has been completed. In addition, being on camera is something most individuals have not experienced and will often cause nervousness and agitation. This tape will be used for trial.
Trial Preparation
Trial preparation will vary depending on the jurisdiction and on the relative rules in that jurisdiction. There is only minimal cross-state uniformity. In the state of New York, the attorneys do not exchange expert reports or even the names of the experts
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being used. What is supplied is a general outline of the credentials of the expert, which is generally sufficient to identify the individual. In Pennsylvania, expert reports have to be exchanged and have to be detailed so that each side will have a clear picture of what their opponent will say and the context in which it will be said. In New Jersey, not only are expert reports exchanged but also each side will have the opportunity to take the deposition or oral testimony, under oath of the opposing expert; therefore, prior to encountering the witness on the stand, attorneys can test the opinions of the expert. Depending on the state, or jurisdiction, the nature and degree of pretrial discovery will affect trial preparation. As a plaintiff’s attorney, I always assume that every case that I take will have to be tried, and I prepare each case from that point of view.
As the date of the trial is set and approaches and there is no settlement, final trial preparations will begin. The following steps are likely to be included in the trial preparation.
Models will be obtained and reviewed. We have models of many anatomic parts in the office. These represent the normal and will always be accepted by the court as part of the evidence. These are to be reviewed with the expert who will use them as part of the testimony prepared for the direct examination. They also help the expert to explain the anatomy as a basis for discussion of the errors that occurred.
Charts will be prepared. These anatomic charts do not depict the normal, and they are prepared by a medical illustrator. The purpose of these charts is to show the abnormality that was present and the errors that occurred. They are used by the medical expert on direct testimony. However, when preparing these charts we know that they can be used by the defendant’s attorney not only in cross-examining our expert but also with his expert on direct examination. Therefore the illustrations must be carefully prepared so that when used by the defense they do not become damaging. Some years ago we were involved in a nonmalpractice case involving a young child who received trauma to his eye. The position of the plaintiff was that the blindness in the eye was caused by the trauma. The position of the defense was that the blindness in the eye was a result of Coats’ disease. The plaintiff had kodachromes taken of the retina and showed these to the jury. The defense’s expert brought to the jury colored photos in a text to demonstrate that it was not trauma but Coats’ disease that caused the blindness. During summation the plaintiff’s attorney showed the kodachrome slides and held up the book next to the slides. The jury was asked to compare the two. The two pictures did not look alike. The boy had been traumatized, and the jury found for the plaintiff.
Some documents will be enlarged. There are usually portions of the records, be they hospital records, office records, or insurance records, that become important. The intention is to use these enlargements during the entire trial. They could be used by the experts. In one case that did not come to trial, the enlargement, which was a note in a hospital record written by a resident, was used by the plaintiff at a settlement conference. The patient had undergone a cataract operation that had gone badly. A week later when seen in the clinic the resident wrote: “This patient one week post butcherotomy.…” Obviously, it was an inappropriate note but caused the case to be resolved. This page would have been blown up and placed before the jury at every opportunity.
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The expert designated by the defendant will be investigated. The name of the individual would be sent out on various professional Internet list serves and prior reports, depositions, and trial transcripts would be obtained. There will be a literature search to determine what the defense expert has written and whether any of the prior testimony, prior reports, or literature conflict with the testimony expected to be given at the trial. These materials would be prepared for cross-examination during the trial.
Depending on the case, we often subject the case to a pretrial mock trial. This is done by hiring a consultant, preparing the case as it would be presented during the actual trial, and then presenting the case to a “jury.” We tend to obtain the potential “jurors” from the county in which the case is to be tried. Questionnaires are given to the jurors before they hear the testimony. The entire case presentation is videotaped for review, as are the jurors’ deliberations. At the end of the case presentation and prior to deliberation, the jurors are presented with an additional questionnaire. We are looking for juror biases, weaknesses in the case, how the jurors react to particular witnesses, and how the presentation of the case should be changed. The changes are made in order to maximize the potential likelihood of obtaining a plaintiff’s verdict and a potential verdict that will be sizeable.
After the mock trial is completed, final preparations begin. The opening to the jury will be revised, and the witnesses will be prepared for their direct examination. Potential cross examinations of witnesses will also be prepared.
If appropriate, special questions will be briefed for discussion with the judge prior to jury selection. For example, suppose it is known that the plaintiff had contracted a venereal disease and that fact is in one of the hospital records. A motion may be made to have that fact excluded from mention at the time of trial as being irrelevant to the facts and the issues in the case. The only reason it might be mentioned is to do damage to the plaintiff’s reputation.
After the trial presentation, a jury consultant may be hired. The consultant, who specializes in jury selection, will work with trial counsel at the time the jury is selected to sift juror information, assist in the determination of the type of questions to be asked during jury selection, and advise counsel on which jurors should be selected or rejected from the jury.
Conclusion
●For a plaintiff’s attorney to be successful in handling a medical malpractice case, the first step, the evaluation and decision to accept a potential case, is the most crucial.
●Every potential juror is going to be a patient at some time in the future. Jurors like physicians and need physicians for their own care. We rely on the arrogance of the defendant physicians not only in assisting us in obtaining clients but also in helping us prove the case once the case is initiated.