Medicolegal Issues for the Urologist: Lawsuits and Expert Witnesses

Educational Objectives

The goal of this program is to improve management of medico-legal issues. After hearing and assimilating this program, the clinician will be better able to:

1. Relate provider liability in malpractice cases to violation of standard of care.
2. Prepare for expert testimony in malpractice cases.

Summary

Elements of malpractice: professional duty owed to the patient, breach of duty, injury caused by the breach, and damages due to the injury; malpractice claims may arise from, eg, misdiagnosis, delayed diagnosis, failure to treat, birth defects from injury, wrong-site surgery, wrong-patient surgery; tort laws are a set of laws to redress wrongdoing, assign blame and establish negligence in conduct that falls short of an established standard; tort laws descend from common law (derived in part from precedence) and fall under the authority of individual states

Legal process: begins with the filing of summons or pleadings; the patient should be able to provide evidence of fulfillment of the 4 elements of malpractice; violation of a standard of care should be demonstrated, which refers to the level of care that a reasonable or similarly situated professional would have provided in a similar situation; cases of, eg, wrong site surgery, wrong patient surgery, may not require expert testimony; damages typically involve monetary compensation and are rarely punitive; going to trial is rare because of the adversarial system in the United States; the process of discovery involves production of documents, interrogatories, and depositions of various parties

Attorneys: plaintiff lawyers often exercise selectivity when taking on cases because they work on a contingency fee basis; jury-appealing cases with high monetary damages are preferred; defense attorneys may be appointed by the medical malpractice company or hired independently by the provider, and work to refute the allegations of malpractice

Why patients sue: plaintiffs may have poor relationships with their physician, feel abandoned, devalued, and poorly informed, according to a study which examined suit depositions that had gone to trial; another health care provider suggested medical malpractice to ≈50% of patients; urologists — most urologists who participated in the American Urological Association survey (Sobel et al, 2006) had been named in a lawsuit, with a mean of >2 suits; 4% of patients and 13% of urologists won at trial; ≈50% of cases were dropped without a financial settlement, and ≈33% of cases were settled with a pre-trial settlement; 60% of providers considered referral to other clinicians for difficult cases; 60% of providers considered limiting the scope of their practice; 25% of providers considered moving states or even leaving practice entirely; 50% of jury cases found in favor of the defendant; cases that involved oncology, endourology, female urology, and erectile dysfunction made up the bulk of cases that proceeded to trial

Consequences of lawsuits: lawsuits against providers may provoke strong emotional responses (eg, outrage, anxiety, and distress); engaging in discussions with attorneys may increase anger or provide reassurance; lengthy trial periods may further intensify the anxiety of defendants; defendants may develop symptoms of major depressive disorder, adjustment disorder, or onset or exacerbation of physical illness; some providers may practice defensive medicine in which they resort to precautionary measures to protect themselves from potential lawsuit

Strategies for providers: social support is crucial to restore mastery of activities; lawsuits are about compensation for patients and not the competence of the defendant; providers should continue to treat patients and attempt to not feel personally attacked by a lawsuit

Expert testimony: most states use the Daubert standard; not all aspects of the standard are applicable to surgeons; experts are expected to possess theoretical knowledge of relevant literature and standards and practical experience in their field; the testimony of expert witnesses is not based on first-hand knowledge of the case or patient; testimony should be evaluated for its relevance and reliability; experts are expected to have specialized education and training relevant to the subject matter; judges have authority to decide if an expert is competent by interviewing and reviewing the curriculum vitae of witnesses; standards for determining competence of an expert vary from state to state

Expert witness policy of the American Urological Association (AUA): experts should provide testimony in matters related to their field and should differentiate poor outcomes from inappropriate practice; experts should not work on contingency and should be equally willing to testify for the plaintiff or the defendant; experts are required to sign the policy statement; experts who work only for the defendant may be referred for an ethics violation

Defense attorneys: evaluate the testimony of the defendant; defendants should be comfortable so that they volunteer information; answers may not be changed at the trial; the defendant is evaluated as a person and a witness; hypothetical questions may be asked; depositions — include the theory and the facts to be presented; other theories or approaches may be drawn out; the ability of the defendant to handle cross-examination is tested; the defendant should be prepared for the deposition; multiple questions are difficult to repeatedly answer; defendants should be prepared to be truthful, answer only the question that was asked, and not offer elaboration; questions that are not understood should not be answered; avoiding editorializing, volunteering information, and making absolute statements is recommended; defendants may ask for a break on the witness stand

Readings

Bal BS. The expert witness in medical malpractice litigation. Clin Orthop Relat Res. 2009;467(2):383-391. doi:10.1007/s11999-008-0634-4; Hill GQ, Ryu RK. A primer to understanding the elements of medical malpractice. Semin Intervent Radiol. 2019;36(2):117-119. doi:10.1055/s-0039-1688425; Sherer BA, Coogan CL. The current state of medical malpractice in urology. Urology. 2015 July;86(1):2-9; Sunaryo PL, Svider PF, Jackson-Rosario I, Eloy JA. Expert witness testimony in urology malpractice litigation. Urology. 2014 April;83(4):704-709; Vanderpool D. The standard of care. Innov Clin Neurosci. 2021;18(7-9):50-51.

Disclosures

For this program, the following relevant financial relationships were disclosed and mitigated to ensure that no commercial bias has been inserted into this content: Dr. Brant has been a consultant for Boston Scientific. Members of the planning committee reported nothing relevant to disclose.

Acknowledgements

Dr. Brant was recorded at the 42nd Annual Ralph E. Hopkins Urology Seminar, held February 1-4, 2023, in Jackson Hole, WY, and presented by Grand Rounds in Urology. For information on future CME activities from this presenter, please visit Grandroundsinurology.com. Audio Digest thanks the speakers and presenters for their cooperation in the production of this program.

CME/CE INFO

Accreditation:

The Audio- Digest Foundation is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians.

The Audio- Digest Foundation designates this enduring material for a maximum of 0.50 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

Audio Digest Foundation is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center's (ANCC's) Commission on Accreditation. Audio Digest Foundation designates this activity for 0.50 CE contact hours.

Lecture ID:

UR461401

Expiration:

This CME course qualifies for AMA PRA Category 1 Credits™ for 3 years from the date of publication.

Instructions:

To earn CME/CE credit for this course, you must complete all the following components in the order recommended: (1) Review introductory course content, including Educational Objectives and Faculty/Planner Disclosures; (2) Listen to the audio program and review accompanying learning materials; (3) Complete posttest (only after completing Step 2) and earn a passing score of at least 80%. Taking the course Pretest and completing the Evaluation Survey are strongly recommended (but not mandatory) components of completing this CME/CE course.

Estimated time to complete this CME/CE course:

Approximately 2x the length of the recorded lecture to account for time spent studying accompanying learning materials and completing tests.

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