Medical Malpractice: What You
Don’t Know Can Hurt You
O. William Brown, MD, JD
Chief, Division of Vascular Surgery William Beaumont Hospital
Interim Chief, Division of Vascular Surgery Wayne State University School of Medicine
Clinical Professor of Surgery
Wayne State University School of Medicine Adjunct Professor of Law
Components of malpractice suit
Physician-Patient Relationship Breach of the Standard of Care Proximate Cause
Physician Patient
Relationship
Physician Patient Relationship
Direct patient contact Phone call
Social setting
Side-walk consult ? Payment unimportant
Guest at party asks vascular surgeon if 3
month history of leg swelling is significant
Surgeon states swelling unlikely to be
significant but suggests that individual see her medical physician
Individual does not see her medical
physician and suffers a PE one week later and dies
Was a physician patient
relationship established?
The law is what the judge
and the jury say it is
How Terminate Relationship
Get fired
Physician withdraws from care after giving
sufficient notice to patient
Breach of Duty
(Standard of Care)
Expert witness
Defendant’s admission
Res ipsa loquitor (sponge in the
abdomen)
Plaintiff is a medical expert
Common knowledge (radiation of a
“The existence of a medical
injury shall not create any
“The failure of a health care
provider to order, perform,
Standard of Care
National standard
“Locality” rule only for hospital equipment Standard of care is different for a resident
or fellow
Standard of care is the same for a general
surgeon and a vascular surgeon performing a vascular procedure
Proximate Cause
Patient dies on first post operative night
following an open AAA resection
At autopsy, retained sponge is found
No recovery for retained sponge since it
Informed Consent
Diagnosis
Treatment plan
Risks and benefits
Treatment alternatives
Informed Consent
Must tell patient anything that could affect patients decision whether or not to proceed with treatment
Medical Malpractice
Informed consent is NOT the same thing
as a consent form
Obtaining informed consent is a non
Cases
Johnson v Kokemoor (individual MD experience
and results)
Open versus Endovascular
-Standard of Care for isolated 2cm common iliac stenosis
-Standard of Care for AAA in 75 yr. Old male with “perfect anatomy” for
Medical Records
Anything written in preparation for
litigation is privileged.
Can not give records or discuss patient’s
condition with anyone unless you have patient’s written permission. (This includes patient’s attorney or another defense
Medical Records
“The Paper Trail”
If you don’t write it down, it didn’t happen Take the time to write down your thought
Expert Witness
This is the single greatest problem in medical malpractice
Expert witness in Florida
Must specialize in the same specialty as
defendant or
Specialize in similar specialty treating
similar patients
However last line of expert witness statute
states:
“This section does not limit
the power of the trial court
Medical Malpractice
Are Vascular Surgeons who have completed the certifying process through the
American Board of Surgery “Board Certified”?
Medical Malpractice
Are Vascular Surgeons who have completed the certifying process through the
American Board of Surgery “Board Certified”?
Medical Malpractice
Are Vascular Surgeons who have completed the certifying process through the
American Board of Surgery “Board Certified”?
Malpractice Defenses
Reasonably prudent physician Error in judgment
Assumption of the risk
Good Samaritan Acts
Roadside
In hospital (Grodin v. Beaumont) In OR
Joint and Several Liability
Hospital Sponsored Insurance Joint defense with the hospital Pitfalls
Statute of Limitations
Fraudulent concealment Wrongful death
Conduct of a Medical
Malpractice Suit
Complaint (Notice of Intent) Discovery
-interrogatories
Discovery deposition
“Nail down” defendant’s opinions Witness evaluation
Relevant
Anything that tends to make a material
Witness investigation
Google search Curriculum vitae Past depositions
Past legal problems (medical and non
Attorney: “Now doctor, isn’t it true that
when a person dies in his sleep, he doesn’t know about it until the next morning?”
Attorney: “So the date of conception (of the baby) was August 8th?”
Attorney: “So the date of conception (of the baby) was August 8th?”
Attorney: “So the date of conception (of the baby) was August 8th?”
Witness: “Yes.”
Attorney: “So the date of conception (of the baby) was August 8th?”
Witness: “Yes.”
Attorney: “And what were you doing at that time”
Attorney: “You were not shot in the fracas?”
Attorney: “You were not shot in the fracas?”
Attorney: “You were not shot in the fracas?”
Witness: “No, I was shot midway between the naval and the fracas.
Attorney: “Are you qualified to give a urine specimen?”
Attorney: “Are you qualified to give a urine specimen?”
Attorney: “Are you qualified to give a urine specimen?”
Witness: “I have been since early childhood.”
Attorney: “Doctor, how many autopsies have you performed on dead
Attorney: “Doctor, how many autopsies have you performed on dead people?”
Attorney: “Doctor, how many autopsies have you performed on dead people?”
Attorney: “Doctor, how many autopsies have you performed on dead people?”
Witness: “All of my autopsies are
Attorney: “Doctor, before you performed the autopsy, did you check for a pulse?”
Witness: “No”
Attorney: “Did you check for blood pressure?”
Attorney: “Did you check for breathing?” Witness: “No”
Attorney: “So, it is possible that the patient was alive when you began the autopsy?”
Attorney: “How can you be so sure, Doctor?”
Witness: “Because his brain was sitting on my desk in a jar.”
Attorney: “But could the patient have still been alive nevertheless?”
Witness: “It is possible that he could have been alive and practicing law
Deposition Testimony
Maintain composure
Answer only direct questions
Answer only the question that is asked Never try to educate the plaintiff’s
attorney
Lack of concentration
can be fatal
Conduct of Medical
Malpractice Suit
Case evaluation
Settlement conference Trial
Medical Malpractice
Can I sue the plaintiff’s attorney for filing a frivolous law suit?
Medical Malpractice
In general the answer is No. Exceptions
1. Malicious prosecution
2. Law suits filed in violation of court rules.
Medical Malpractice
If I settle the case, am I admitting that I committed malpractice?
Medical Malpractice
If I settle the case, am I admitting that I committed malpractice?
Medical Malpractice
If I settle the case, am I admitting that I committed malpractice?
Settling a Case (Advantages)
No loss of time going to trial
No risk of excess personal liability No admission of liability
Medical Malpractice
Medical Malpractice
Medical Malpractice
Know how to avoid obvious risk
Understand basic legal concepts of a
medical malpractice suit
Know when to “hold’em and when to
fold’em
and
Medical Malpractice
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