How NOT to Commit
Medical Malpractice
Senior Partner
The Children’s Medical Group
Poughkeepsie, NY
25 Years Experience as an Expert Witness
For Both Defense and Planitiff
Herschel R. Lessin MD, FAAP
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
How NOT to Commit
Medical Malpractice
Senior Partner
The Children’s Medical Group
Poughkeepsie, NY
25 Years Experience as an Expert Witness
For Both Defense and Planitiff
Herschel R. Lessin MD, FAAP
How NOT to Commit
Medical Malpractice
“Being a physician is like being the president
of a diving board company…you are going to
get sued”
Erle Peacock Jr. MD, JDHow NOT to Commit
Medical Malpractice
THE EXPERT WITNESS
HOW DO I SLEEP AT NIGHT?
•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)
How NOT to Commit
Medical Malpractice
THE EXPERT WITNESS
Assists the Court and the “Triers of Fact”
i.e. THE JURY
Submits an expert opinion and its
basis
Tells the truth
Does not become an “advocate”
How NOT to Commit
Medical Malpractice
Preventing a Malpractice Action:
“
BULLET-PROOFING” WHAT YOU DO
How NOT to Commit
Medical Malpractice
“
BULLET-PROOFING” WHAT YOU DO
ATTITUDE
How NOT to Commit
Medical Malpractice
BAD OUTCOME ≠ LAWSUIT
There is only one lawsuit filed for each
7.6 medically negligent acts.
(NEJM 7/25/91)Patient Relationships
A study comparing high suit vs. low
suit OB/GYN’s showed:
NO DIFFERENCE IN QUALITY
OF CARE!!!
What was the difference?
BEDSIDE MANNER !!
Patient Relationships
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)
Patient Relationships
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)
Patient Relationships
“
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)
Patient Relationships
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)
The Keys to Avoiding a
Lawsuit
A Good Patient Relationship with
Trust and Communication:
DECREASED CLAIMS AFTER
POOR MEDICAL OUTCOME
Adverse outcome plus poor
relationship:
The Keys to Avoiding a
Lawsuit
THE DISNEY CONCEPT OF
PEDIATRIC PRACTICE:
IT’S SHOWTIME !!
The Keys to Avoiding a
Lawsuit
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
The Keys to Avoiding a
Lawsuit
DON’T BE LAZY:
BAD THINGS HAPPEN ON SUPERBOWL SUNDAY
PICK UP THE PHONE DO A COMPLETE EXAM
GROWTH CHARTS ARE THERE FOR A REASON
DOCUMENT EVERYTHING
The Keys to Avoiding a
Lawsuit
DON’T BE LAZY:
•The Case of the SCFE Delayed
•The Case of the Multiply Admitted Asthmatic •The Case of Fainting Teenager
The Keys to Avoiding a
Lawsuit
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
The Keys to Avoiding a
Lawsuit
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
The Keys to Avoiding a
Lawsuit
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….
The Keys to Avoiding a
Lawsuit
KNOW YOUR MEDICINE:
•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
Don’t be a “Double O” Doc
How NOT to Commit
Medical Malpractice
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
How It Feels When You Get
Your First Subpoena:
Call the patient
Call the attorney
Discuss the case with anyone
And most important
:
NEVER, EVER ALTER THE CHART!!
DO NOT
:
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!!
DO:
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
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
Educate Your Attorney
Be Your Own Expert Witness
Take your attorney’s advice as to:
How to dress
How to behave
How to answer questions
Let Your Attorney Educate You
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”
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
Purpose of Depositions
THE
MONETARY
VALUE
OF THE CASE
TO DETERMINE
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
Tips for Testimony:
Trial
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
Direct Examination - Your atty. makes your case
PREPARE AND PRACTICE
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
How NOT to Commit
Medical Malpractice
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
