By James W. Saxton, Esq. & Maggie M. Finkelstein, Esq.
Severity continues to remain high. Factors include consolidation of counsel and the types of cases that they take on. Plaintiff counsel look for the circumstances of an adverse outcome coupled with an aggravating circumstance (miscommunication, documentation issues, and service lapses, for example). When it comes to a trial, the courtroom drama continues. Plaintiff lawyers are being taught to elicit emotions, grief and sympathies from jurors. According to the United States Department of Justice, 30-33 percent of cases result in verdicts or settlements for plaintiffs, and medical malpractice claims involving a payout resulted in 95 percent of them being settled prior to trial. Traditionally, we thought we won 90 percent of the cases! It appears over the years these numbers are eroding. We need to more aggressively change that trend.
If you find yourself as a defendant, what can you do? Your evidence is key! Through evidence, you can reduce the risk of an award, reduce the risk of a large award, and better your odds. The time to start appropriately working on your evidence is now. The way in which you document your history, instructions, informed consent – and it is changing – is evidence. The way you communicate with a patient or family post-adverse event is evidence.
Because your evidence is used by Plaintiff to show a jury that the elements of medical malpractice liability are present, it is important for you to first understand what elements that a Plaintiff must prove:
Negligence. Plaintiff must prove the applicable standard of care and that the physician breached that standard of care. Expert testimony is typically required by Plaintiff to prove negligence.
Causation. The alleged negligence must be causally linked to the plaintiff’s injuries/damages. Expert testimony is also typically required to prove causation; however the legal theory of res ipsa loquitor (“the thing speaks for itself”) is an exception to that general rule. The theory behind this exception is that the cause of the negligence can be so easily understood by the lay person that expert testimony is not necessary.
Damages. Plaintiff must have actually incurred damages, and these damages must have been caused by Plaintiff’s negligence. Under the MCARE Act, damages are reduced to present value.
In short, malpractice is “negligence.” It is not a maloccurrences. In other words, it is not simply a bad outcome or adverse outcome. We need to change the view of society in this regard. It is not what we would have done in retrospect or what we wish we had done. The legal elements must be met – an established standard of care must have been breached.
A Plaintiff sets forth their theory of liability and right to recovery in a complaint. Typically a complaint is what initiates a formal lawsuit. In Pennsylvania, a Plaintiff may alternatively initiate a lawsuit by service of a writ. A writ contains no allegations and is simply notice that you are being sued. After proper service of the complaint, in Pennsylvania, a defendant must either serve an answer to the complaint or file preliminary objections. The answer is a defendant’s opportunity to respond to the Plaintiff’s allegations (at which time certain “affirmative” defenses must also be raised by defendant in what is termed new matter). Not all state processes include the preliminary objection stage, but Pennsylvania is one state that does. It is an opportunity to object to certain information contained in a complaint, and these objections are defined by State Civil Procedure Rules. For example, impertinent information, inflammatory allegations, punitive damages, and deficient theory of liability alleged by Plaintiff.
With tort reform measures in Pennsylvania, a Certificate of Merit is required to be filed by Plaintiff within 60 days of filing of a complaint. In a typical medical malpractice case against a physician for direct negligence, the Certificate of Merit must certify that an appropriately licensed professional has supplied a written statement of “reasonable probability” that care fell outside the accepted standard of care and conduct caused harm to Plaintiff. If no Certificate of Merit is filed by Plaintiff within the 60 days (and no timely motion is filed by Plaintiff to extend the 60 day requirement), a defendant may file for dismissal. This dismissal is automatic, and is a hot issue in Pennsylvania.
The next stage of a lawsuit is discovery. It is through the process of formal discovery, governed by Pennsylvania Rules of Civil Procedure, that information is exchanged, including medical records and other documents. The formal process may include Interrogatories, Request for Production of Documents, Requests for Admissions, Independent Medical Examinations, and Subpoenas. Interrogatories are written questions from one party (defendant or plaintiff) to another party. Request for Production of documents are exactly what the name implies and are used to obtain documents from other parties in the suit. Subpoenas are used to obtain documents from non-parties (other witnesses like subsequent medical providers or employers).
In discovery, this is also the time when your evidence is key. Did you document the telephone call with a patient after hours instructing her to go to the ED? Did you have the patient sign an informed refusal when he declined surgery for a suspected heart condition? Did you obtain a procedure-specific informed consent form which delineates the risks of the procedure, and which the patient attested to understanding of those risks? If not, the lack of this information will be used against you – instead of for you – both at trial and at your deposition.
Depositions are part of the discovery process. A deposition is the Plaintiff counsel’s opportunity to ask you questions, and all of your answers are recorded or transcribed. Often videotape depositions are used. Depositions have taken on greater significance in the past several years. They are used in mediations and arbitrations, and are often incorporated into the plaintiff’s presentation of evidence at trial. This means we need to take a fresh look at your preparation. Your deposition, again, is evidence. You only have one shot at your deposition, and preparation for it is the key to a successful deposition. For example, if you had the patient sign the informed refusal, when there is an allegation that if the patient had known of the need for surgery, he would have agreed to the surgery then that form can be used for you during your deposition. Further, it is often at the deposition that Plaintiff counsel evaluates you and your evidence to determine whether he wants to move forward with a lawsuit.
Experts are also retained by your counsel to support the care you provided. Again, the evidence you appropriately created during the care of your patient (the medical record) will be used by your expert to determine whether your care met the applicable standard of care. Help your expert help you!
If your case would continue, the next steps would be movement to the trial. Pre-trial motions may be filed to exclude information or experts (and motions may be filed throughout the lawsuit process). Once those are decided by the judge, the trial moves forward. Again, the trial is an opportunity to have your evidence work for you, throughout each stage of the trial:
· The trial begins with selection of jurors. A formal process is followed and opportunities exist to strike jurors from the jury panel. This process will be led by your attorney on your behalf.
· After the jury is selected, opening statements are provided to the jury, first by the plaintiff who sets forth his case and theories of liability, then by the defense when your defense attorney will set forth your theme.
· The Plaintiff then moves forward with its case. Witnesses will testify, Plaintiff will testify, and Plaintiff’s expert will testify.
· At the close of Plaintiff’s case, the defense case moves forward. Similarly, witnesses will testify on your behalf as well as your expert, and most times you as well. Again, your evidence is used for you!
· Next, the Plaintiff and Defendant have an opportunity to address the jury in a closing, again with the defense asserting its theme and using your evidence.
95 The judge provides the jury instructions, and provides them with questions it must answer to determine first whether the defendant is liable for medical malpractice.
95 Finally, judgment is rendered, and hopefully, with your good evidence, you beat the odds.
The lawsuit process does not always end with the judgment. The losing party may file post-trial motions, and ultimately may appeal to the next level of courts. It can be a long process, which impacts physicians emotionally and can impact their practice. Avoiding the suit in the first instance by using your evidence would be the best result.
With this brief description of the anatomy of a lawsuit, you can hopefully see how your evidence can help you to avoid a judgment or at least avoid a severe award. Your evidence (or lack of it) is also what causes a Plaintiff attorney to take on a plaintiff’s case in the first place. Risk reduction strategies like documentation tools, enhanced communication, and five-star service can help not only during the lawsuit process, but also to avoid a suit altogether. It is the combination of a negative or unexpected outcome plus an aggravating circumstance noted above that causes Plaintiff attorneys to take on cases and to continue to pursue them. By incorporating documentation tools like procedure-specific informed consent, informed refusal, or a new history form, or incorporating a five-star excellence program into your organization which is practiced by everyone (physicians and staff), or incorporating and providing training for enhanced communication by physicians and staff, you will have evidence to work in your favor, and can beat the odds.
James W. Saxton, Esq. is Co-Chair of Stevens & Lee’s Health Care Department and Chair of the Health Care Litigation Group. He also has served as the Chairman of the American Health Lawyer’s Association’s practice group on Healthcare Liability and Litigation from 2002 until 2005. Maggie M. Finkelstein, Esq. is an Associate in Stevens & Lee’s Health Care and Litigation Departments, and is a member of the American Health Lawyers Association.