1
Mock Trial
Examining Elements to Prepare the Pediatric Practitioner
Brian G. Wilhelmi M.D./J.D., Eric V. Jackson M.D./M.B.A., Robert S. Greenberg M.D., Brian J.
McNamara J.D.
Educational Objectives
• Upon completion of the workshop, the participant will be able to:
– List key concepts and legal strategies inherent in medical malpractice cases.
– Describe the benefits of disclosure and avoidance of malpractice claims.
– Identify qualities found in an ideal defendant in a medical malpractice case.
– Demonstrate testimony techniques in preparation for a deposition or trial.
2 February 21, 2014
3
Legal Disclaimer
• Any information provided in this
presentation regards general legal
information and does not constitute the provision of legal guidance or the
formation of legal representation.
• The case, and all its associated facts, are completely fabricated for the
purpose of simulation and do not
represent any actual events or any institution’s experience
February 21, 2014
Disclosures
None of the presenters today have any personal financial interest in the topics discussed today, nor will there be any topics discussed with a bias towards services provided by any presenter.
February 21, 2014 4
Ground Rules
• This is a learning environment.
• We are going to the heart of the matter.
• Participation is ENCOURAGED!
• What happens in Workshop….Stays in workshop.
• Finally….This is only business.
February 21, 2014 5
Introductions
February 21, 2014 6
Robert S.
Greenberg M.D.
Eric V.
Jackson
M.D./M.B.A.
Brian G.
Wilhelmi M.D./J.D.
Why Provide Legal Training?
~National Statistics~
• 42%
of Anesthesiologists over the age of 55 have been sued at least once.• 65%
of those claims dropped and25%
settled• 4.5%
were resolved via Mediation.• 5.0%
were resolved via trial.– At trial, Physicians on average won 90%, but outcomes are highly dependent upon jurisdiction.
– Cost of Defending Nonpayment Claim = $20,000 – Cost of Defending Winning Case to Trial = $100,000
7 Source: American Medical Association 2007-2008 Physician Practice
Information (PPI) Survey Feb 7, 2013
Why Provide Legal Training?
Our Recent Survey of ACCM Providers (N=117)
8
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
> 20 10 - 20 5 - 10
< 5
Percent of Practitioners in Experience Group
Years in Practice
Involvement in Litigation by Years of Experience
No Lawsuits 1 Lawsuit
>1 Lawsuit
February 21, 2014
Why Provide Legal Training?
Our Recent Survey of ACCM Providers (N=117)
9
0 10 20 30 40 50 60 70 80
Percent of Providers Answering "Agree" or "Strongly Agree"
Years of Professional Experience vs. Self Efficacy < 5 yrs.
5-10 yrs.
10-20 yrs.
> 20 yrs.
25/32 7/11
10/16 23/50
13/32 4/11
8/16 9/50
24/32 7/11
11/16 16/50
Avoiding Negative Medical Outcomes
Documentation
Avoiding Medical Malpractice
February 21, 2014
10
Why Provide Legal Training?
Our Recent Survey of ACCM Providers (N=117)
I would like to receive proactive education/training to
reduce the likelihood that a negative medical outcome will result in medical malpractice litigation.
February 21, 2014
11
Why Educate about Depositions?
Anesthesia is a Low Frequency, High Damages Specialty
Feb 7, 2013
How Does an Adverse Event Turn into Litigation?
February 21, 2014 12
Event
PREVENTION
• Safety Protocols
• Environmental Safeguards
• Staff Training
• TimeOut’s
• Checklists
MITIGATION
• Family
Counseling
• Apology Law
• Debriefing
• Mediation
• Litigation
February 21, 2014 13
Opening Statements The Case of
Larry Shelby
• 10 year old male presents for T&A.
• PMH: Asthma, 34 week gestation
• Meds: Albuterol
• All: Seasonal
• Exam: Mild Nasal Congestion and mucous present in the larynx on induction
February 21, 2014 14
The Case
• A Quick Hand-Off
• Resident Involvement
• The Routine Case at a Critical Period
February 21, 2014 15
The Handoff
• Overhead STAT
• Confusion &
Commotion
• Critical Action Required
February 21, 2014 16
The Emergency
• Transport
• Resident-Nurse Handoff
• Timely Nursing Evaluation of an Unstable Patient
February 21, 2014 17
PACU Admission
• Recognition
• Emergency Code
• Team Dynamics
February 21, 2014 18
Rapid Response
• Critical Conversations
• Apologies
• Agreement on the Sequence of Events
February 21, 2014 19
Discussion with Family
How Should we Approach the Initial Disclosure?
• Always consider a call to legal.
• Discuss the procedure and sequence of events with the operating team.
• Introduce yourself to family.
• Discuss the procedure and the outcome.
• Tell what you know to be true, no speculation.
• Offer a sincere apology for the patient’s condition.
• Discuss the plan of care moving forward.
February 21, 2014 20
Why Apologize and Disclose?
• What plaintiff’s want from litigation
– To receive an explanation.
– To prevent the same thing from happening to someone else.
– For doctors to realize what they’ve done.
– The truth!
• What an Apology may Induce
– Reduce Lawsuit Initiation – Induce Settlement
February 21, 2014 21
Service of Process
February 21, 2014 22
Medical Malpractice
• Tort:
– A wrongful act or an infringement of a right (other than under contract) leading to legal liability.
• Civil Court:
– Non-Criminal
– Win by a “Preponderance of the Evidence”
The Civil Court System
Anesthesiologists are Sued for the Tort of Negligence
Negligence: Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm.
Components:
1. Duty
2. Breach of Duty (Standard of Care) 3. Causation
4. Damages
Malpractice Case Timeline
25
Answer
Preliminary Motions
Complaint Inciting Event
Discovery
Depositions,
Interrogatories, Expert Witnesses, Records/Documents
Trial
Pre-Trial Conference Settlement Offers
Outcome
Post-Trial Motions, Appeals
February 21, 2014
What is a Deposition?
The portion of a malpractice case during which evidence in the form of sworn testimony is
recorded for later use in the courtroom.
26
A live question & answer session that a provider can influence to
positively alter the outcome of the case.
February 21, 2014
February 21, 2014 27
What is a Deposition?
Stenographer
Plaintiff’s Attorney Defendant
Defandant’s Attorney Recorder
Understand Roles at Deposition
• The Deposition is not used to resolve a
dispute. It is used to gather information and accomplish goals.
• The Plaintiff’s Attorney will:
– Test potential theories of negligence – Test your desirability as a witness
– Make a record for subsequent impeachment
• The Defense Attorney will:
– Prevent improper question forms
– Make subtle suggestions on answers
28 February 21, 2014
• The Provider’s role at deposition is to answer questions honestly and tactfully.
February 21, 2014 29
Understand Roles at Deposition
Communication Skills Matter!
30
Debriefing
Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D.
February 21, 2014
February 21, 2014 31
#1. Tell the Truth
February 21, 2014 32
#2. Be Professional
• Dress Conservative
• Control Emotions
• Avoid Teaching
• Provide Sympathy
• QUESTION: Have you been sued before?
• INAPPROPRIATE ANSWER: I've had no other lawsuits but I have reported several incidents to my insurer that never became suits.
• APPROPRIATE: ANSWER: NO.
February 21, 2014 33
#3. Answer only What is Asked
• QUESTION: Given the ABG results of: pH = 7.21/
pCO2 = 70/ pO2 = 75/ HCO3 = 27, how do you explain you explain the metabolic acidosis in this patient?
• INAPPROPRIATE ANSWER: Well, that is not correct.
The data suggest that this patient had a respiratory acidosis and the probable causes were....
• APPROPRIATE ANSWER: I am unable to answer the question as you have stated it.
February 21, 2014 34
#4. Avoid the Natural Impulse to
Teach
• QUESTION: Doctor, wouldn't you have avoided
causing a hemothorax by placing an internal jugular central line under ultrasound instead of a subclavian?
• INAPPROPRIATE RESPONSE: Well, yes, I guess I could have avoided the artery under ultrasound
guidance.
• APPROPRIATE RESPONSE: In the circumstances at the time, my decision was both clinically
appropriate and in keeping with the community standard.
February 21, 2014 35
#5. Do Not Speculate
• QUESTION: Doctor, are you familiar with Miller’s text on anesthesiology?
• APPROPRIATE RESPONSE: Yes, I am familiar with it.
• QUESTION: Well, then, doctor, you recognize this text as authoritative, do you not?
• INAPPROPRIATE RESPONSE: Yes.
• APPROPRIATE RESPONSE: It is one of many useful texts.
February 21, 2014 36
#6. Avoid Legal Blunders
• QUESTION: Doctor, are you aware that when my client told his current doctor that you performed the anesthetic that left him with a CVA, Dr. Brown just rolled his eyes and shook his head?
• INAPPROPRIATE RESPONSE: Well, Dr. Brown has always been critical of my work and is responsible for generating several other lawsuits against me.
• APPROPRIATE RESPONSE: First, I was not aware of that. And second, I know of no reason why Dr. Brown would act that way.
My care was completely appropriate and my patient's injury was an unfortunate but known side effect of the procedure, which I covered fully in the informed consent conference.
February 21, 2014 37
#7. Avoid Blame
• QUESTION: Doctor, please name any individuals with whom you have discussed this case.
• APPROPRIATE RESPONSE: Aside from my lawyer, I have mentioned that I have been sued to some
individuals and may have told them how I felt about it but I have not discussed the facts or circumstances of the case with anyone.
• APPROPRIATE RESPONSE: No one other than my lawyer.
February 21, 2014 38
#8. Do Not Open New Information
• QUESTION: Doctor, isn't it correct that if the
physician uses reasonable care, this result (referring to the patient's injury) does not ordinarily occur?
• INAPPROPRIATE RESPONSE: That's correct.
• APPROPRIATE RESPONSE: Although the result may not ordinarily occur, when it does occur, it is
most often due to the inherent risk of the procedure.
February 21, 2014 39
#9. Do Not Testify Against Yourself
February 21, 2014 40
#10. Prepare to Encounter the
Patient/Plaintiff
Is This A Likely Lawsuit?
February 21, 2014 41
42
Discussion
&
Thank You
Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert Greenberg M.D.
February 21, 2014