Malpractice, Lawsuits, and Survival

Educational Objectives

The goal of this program is to improve preparedness for medical malpractice lawsuits. After hearing and assimilating this program, the clinician will be better able to:

1. Relate adherence to the standard of care to the risk for malpractice litigation.
2. Secure appropriate malpractice insurance.

Summary

Legal terminology: standard of care (SOC) — the actions that a similarly trained physician would take in the same situation; SOC may be a global protocol (eg, advanced cardiac life support) or a local policy; proving deviation from the SOC is required to prove negligence or malpractice in a lawsuit; the American Society of Anesthesiologists does not set standards because local policies are unique; gold standard — accepted for various procedures; ultrasonography may be considered as the gold standard for performing nerve blocks, but it is not a universal standard for all practices; negligence — a case in which the clinician considers care was correctly provided but the patient is accidentally injured, and deviation from SOC may have occurred; malpractice — an intentional decision by the clinician that causes harm; res ipsa loquitur — Latin for “the thing speaks for itself”; indicates an obvious action that caused harm from treatment below the SOC; a trial may not be required; not all states allow this argument

Malpractice insurance: claims made — the most common type of insurance; the policy must be active at the time when the claim is made; a tail provides coverage for lawsuits filed before the statute of limitations runs out but after the clinician has left the practice or the insurance policy; occurrence — the policy must be active at the time of the suspected or claimed injury; a tail is not required; claims made policies are less expensive initially, but tail coverage is expensive; sovereign immunity — provided to clinicians working in large state institutions; clinicians are not named in malpractice or suspected injury lawsuits; instead, the state is sued

Statute of limitations: the period of time within which a patient must file a lawsuit for their suspected injury; longer statutes are in place for, eg, obstetric cases (18 yr), leaving foreign objects during surgery; the statute of limitations varies by state; in California it is 1 yr after discovery and 3 yr after the occurrence; most states have a 2-yr statute

Proving negligence or malpractice: professional duty (duty of care) — physicians have a professional duty toward their patients; breach of duty — involves deviation from a SOC; difficult to prove, and requires testimony from expert witnesses; the testimony of expert witnesses is subjective and practice-dependent; causation — involves proving that the deviation from a SOC has caused a physical, mental, or financial injury (eg, lost wages); damages — based on harm incurred from the injury

Legal defense: the clinician receives a notice when the lawsuit is filed; attorney selection — the insurance company may choose an attorney for the clinician, or the clinician may request to choose their own attorney; information review — all the information available for the case must be carefully gone over; the patient’s chart should be closely reviewed with the attorney, so they may recreate the complete case in court; clinicians should know the relevant SOC and written policies; the defendant should not discuss the case in order to prevent information from reaching potential jurors, and to avoid outside influence; expert witnesses — the defendant should be involved in choosing expert witnesses; the attorney may provide a list of witnesses who previously testified on their cases; clinicians may ask their colleagues if they are able to be an expert witnesses; expert witnesses may be hired and may give favorable testimony for compensation

Depositions: clinicians should read the depositions of fact witnesses (people who were present during the event), expert witnesses, and other persons involved in the case; defendants are allowed to attend depositions; attorneys typically ask the same questions in court and the answers should match those in the deposition; preparation for deposition — attorneys may personally and professionally attack the person being deposed; the plaintiff’s attorney may attempt to cause the clinician to say something they do not mean; the clinician should be adequately prepared by their attorney for the deposition, by practicing questions likely to be asked and by intuiting the plans of the opposing attorney

Testimony preparation: similar to deposition preparation but the clinician is in the witness box in front of the jury and others in the court room (eg, plaintiff, family members); preparing to give testimony as a defendant is difficult; the defense attorney should extensively prepare the clinician for testimony with, eg, mock trials

In court: jury selection — jurors are questioned to ensure no conflicts of interest are present, or that they do not know the persons involved in the case; physicians are typically not chosen as jurors (not a “jury of peers”); eye contact should be made with jurors to develop a connection; jurors are influenced by attorneys and judges; questions follow what was asked during depositions; attorneys may impeach the deposition if answers differ from those given in the deposition; attorneys may attempt to prove to the jury that the defendant or expert witness has lied and changed their answer; attorneys typically do not ask questions that have not been asked before; clinicians should read the deposition multiple times to prepare for the questions in the courtroom; judges — rule on objections and whether to allow information presented (eg, exhibits, answers) by attorneys; the judge is meant to be impartial; comments from the judge may influence the jury; judges qualify expert witnesses with a subset of questions; qualified expert witness — allowed to give an opinion related to the case about the events which may have occurred and whether there was deviation from an SOC; fact witness — may relate only what they observed; may be another physician, a nurse, or any other person present at the time of the event; fact witnesses may not give opinions

Opening and closing arguments: opposing attorneys may not object during opening and closing arguments; the stage is set during the opening argument (ie, the court is told what the attorney is trying to prove); attorneys have a final opportunity to sway the jury during closing arguments

Jury deliberation: the case is handed over to the jury with instructions from the judge; plaintiffs have to prove malpractice occurred by a preponderance of the evidence (ie, ≥51%), unlike criminal trials which require proof beyond a reasonable doubt; an unanimous jury decision is required; damages — damages are awarded if the defense loses; damages may recommended by the jury with guidance from the judge, or set by the judge; the damages awarded depend on state law and may include payment of hospital bills and compensation for mental anguish

Preventing lawsuits: building a good rapport with patients and avoiding rudeness is recommended; clinicians should use layman’s terms and avoid medical jargon when speaking to patients; a good bedside manner is helpful; equipment and techniques evolve which require clinicians to stay abreast of changes; not keeping up with evolving practices may indicate an inappropriate SOC; clinicians should practice evidence-based medicine and follow policies, procedures, guidelines, and protocols; patient consent has no value in a court of law

Readings

Blackman GI. Medical malpractice statutes of limitation: a review of the law and its application. J Med Pract Manage. 1988;3(3):198-204; Branach CS, Brown RKJ, Juip RA, et al. The medical malpractice deposition: a review for radiologist-defendants. AJR Am J Roentgenol. 2021;217(5):1232-1238. Doi:10.2214/AJR.21.25724; Dossani RH, Waqas M, Meyer MJ, et al. Sovereign immunity and its implications for neurosurgery. Neurosurg Focus. 2020;49(5):E15. Doi:10.3171/2020.8.FOCUS20613; Echigo J. Pitfalls in informed consent: a statistical analysis of malpractice law suits. Nihon GekaGakkaiZasshi. 2014;115(3):169-172; Frierson RL, Joshi KG. Malpractice law and psychiatry: an overview. Focus (Am Psychiatr Publ). 2019;17(4):332-336. Doi:10.1176/appi.focus.20190017; Luther GW. The key elements of medical negligence-duty. Neurosurgery. 2021;88(6):1051-1055. Doi:10.1093/neuros/nyab077 10.1093/neuros/nyab077; Malpractice insurance: what you need to know. J OncolPract. 2007;3(5):274-277. Doi:10.1200/JOP.0756501; Murphy JL. When clinicians are summoned to testify in court: orientation to the process and suggestions on preparation. SAGE Open Nurs. 2018;4:2377960818757097. Published 2018 Feb 15. Doi:10.1177/2377960818757097; Vanderpool D. The standard of care. InnovClinNeurosci. 2021;18(7-9):50-51.

Disclosures

For this program, members of the faculty and planning committee reported nothing relevant to disclose.

Acknowledgements

Dr. Rodrigo was recorded at the 2023 Mid-Year Seminar of the American Osteopathic College of Anesthesiologists, held March 17-19, 2023, in Chicago, IL, and presented by the American Osteopathic College of Anesthesiologists. For information on future CME activities from this presenter, please visit https://www.aocaonline.org/. 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 1.25 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 1.25 CE contact hours.

Lecture ID:

AN653401

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.