Guide to Winning Your Malpractice Lawsuit

“The cost of malpractice claims is considerable, both monetarily and in terms of impact on the healthcare system,” says Brian K. Atchinson, President of the Physician Insurers Association of America (PIAA). “Wary of possible lawsuits, many physicians have closed their practices, stopped performing high-risk procedures, or reduced their care of high-risk patients, leading to a situation in which some areas of the country have limited — or even no — access to medical specialists.”

A lawsuit can happen to anyone

Being accused of committing medical malpractice is one of the most traumatic and daunting experiences any physician can face. It’s little comfort that this assault on your reputation means that you’re in good company.

More than 42% of physicians have been sued over the course of their careers. Before reaching the age of 40, more than half of obstetricians/gynecologists have already been sued. Ninety percent of general surgeons age 55 and over have been sued. (Source: American Medical Association survey, 2010, covering years 2007-2008).

Medscape will take you step by step through the litigation process. You’ll learn what to expect, how to work with your defense attorney, and how to recognize tactics for winning at trial. (Note: Each jurisdiction has its own rules, court precedents, and procedures that could affect your individual case.)

If you think you might be sued…

If you even suspect that a patient is considering a lawsuit, contact your malpractice insurance carrier. Do the same if a plaintiff’s attorney requests a patient’s medical records. That attorney may contact you and ask to speak “informally — just to get some information.” That gambit can be a trap. Never agree to speak with an attorney without your carrier’s assistance. Once contacted, the carrier will assign a claims representative who can guide you through the process, help you secure relevant records, and coordinate your case.

“Why should you ever trust a plaintiff’s lawyer?” asks Harold L. Jensen, MD, Chairman of ISMIE Mutual Insurance Company. “Unless a plaintiff’s attorney provides a written covenant-not-to-sue executed by the plaintiff, a physician can never be certain that he/she will not be added as a defendant to a lawsuit.”

Initiating a malpractice suit is expensive for the plaintiff’s attorney, who must often advance $50,000 or more in expert fees and deposition expenses. Before committing to litigation, experienced attorneys will review the patient’s medical records and likely send them to an expert to determine whether you or other health professionals deviated from the standard of care.

Fewer than 8% of medical malpractice cases ever reach a jury. About two thirds of claims are dropped, dismissed, or withdrawn, while about 27% are settled. Physicians prevail in 80%-90% of cases that reach the trial stage.

What to do first if you’re sued

If served with a summons or complaint, call your carrier immediately. To curtail the number of frivolous suits, most states now require the plaintiff to file a certificate of merit with the complaint. An expert must review the case to confirm the basis for the action.

Your carrier will assign an attorney. Be candid with the attorney. You may be asked to provide and interpret medical records, help locate relevant information, identify expert witnesses, and develop exhibits.

Assemble all available records about your patient’s treatment and review them thoroughly.

Never alter your records in any way. “Do not ‘supplement,’ ‘clarify,’ ‘complete,’ or ‘reconstruct’ your records. Any attempt to change them will probably be discovered by the plaintiff’s attorney and can compromise your credibility,” according to The Physician Defendant, a litigation handbook prepared by ISMIE Mutual Insurance Company, which insures more than half of Illinois doctors.

The search for incriminating information

Your insurer will likely check industry databases of all insurance claims to learn about the plaintiff’s car accidents, workers’ compensation cases, and other claims. Previous injuries and treatments that some plaintiffs conceal may turn up.

Significant discrepancies can be revealed by verifying phone numbers, Social Security information, driving records, liens and judgments, and criminal background. If warranted, the carrier might seek documents, court records, bankruptcy filings, Department of Motor Vehicles records, and employment records. It could even conduct video surveillance of the plaintiff if fraud is suspected.

Your attorney may attempt to have the complaint dismissed on legal grounds, such as passage of too much time since the incident in violation of the statute of limitations, that the complaint isn’t sufficiently factually specific, or that it fails to specify a recognized claim of malpractice.

Interrogatories: The facts come out

Before trial, the discovery process gives attorneys access to prospective witnesses and evidence. Each side exchanges written questions and answers called interrogatories.

Each attorney typically asks to see copies of the medical records that the opponent may use as evidence along with any medical literature that may be cited. Your attorney may ask the plaintiff to detail his or her medical condition prior to and after your involvement. The plaintiff may also be asked details about his injury and damages and the dollar amount being sought in compensation.

The plaintiff’s lawyer may question your background, training, and procedures that you performed on the plaintiff. Don’t be surprised if the questions are accusatory or make assumptions that reflect negatively on you. The plaintiff’s attorney may be trying for a tactical advantage. “You can neutralize this tactic by keeping your emotions under control and working with your attorney to prepare appropriate answers,” ISMIE’s The Physician Defendant handbook advises.

Depositions: You’re under oath

A deposition is pretrial testimony given under oath, usually before a court reporter or videotape. It may not occur until a year or more after the suit is filed. The defendant physician, plaintiff, expert witnesses, and others with information about the case will testify.

A deposition is a “practice run” of the actual trial. “Leverage in negotiating a case and the ease or difficulty in defending a case may be determined at deposition,” says Dr. Jensen. The strengths and weaknesses of each side’s case are revealed. If the physician comes across as arrogant, confused, or less than credible, the plaintiff will have a roadmap on how to attack his testimony at trial. That’s why your insurer will spend considerable time preparing you for the deposition.

Depositions can be unsettling. The plaintiff’s attorney will know a great deal about the medical issues involved in your case from the records, literature, and expert opinions. Your attorney will rely on you to point out discrepancies in testimony from the plaintiff and his expert witnesses.

How to ace your depositions

Review the patient’s records repeatedly until you’re prepared for a detailed discussion of every aspect of them. Be prepared to explain your rationale in treating the patient, especially if what you did varies from established practice guidelines or what the literature suggests.

Attend all depositions of the plaintiff and expert witnesses. “Your presence may inhibit those testifying from exaggerating and perhaps cause them to reassess their opinions,” the ISMIE handbook states.

Give truthful but not necessarily extensive answers. This is an adversarial process and anything you say can be used against you. Confine yourself to responses that satisfy the law, even if that means answering a question with a brief “yes” or “no.” If you don’t fully understand a question, ask for clarification. Don’t try to guess the plaintiff’s attorney’s intentions.

Think and stay calm in depositions

When in doubt, consult the record. If you don’t recall something, say so. Don’t acknowledge a text as fully authoritative unless you’re satisfied that it is. No text is absolutely authoritative. Don’t offer an unqualified endorsement of material unless you accept that source as authoritative in all respects.

Don’t agree with generalizations. Beware of questions that begin with a phrase such as “Generally speaking, Doctor…” You may end up conflicting in theory with what you have actually done. Plaintiffs’ attorneys often ask leading questions, such as “Doctor, wouldn’t you agree that …?” Don’t agree with a leading question unless you feel comfortable with where it is leading.

Never lose control of your emotions. The plaintiff’s attorney may badger or antagonize you and challenge your competence. He or she is trying to see how you react under pressure. If you respond with anger, the attorney may try to get you to respond the same way in front of a jury, implying that you are prone to respond erratically under stress.

Dueling experts

The law in almost all jurisdictions requires that the plaintiff’s case be supported by expert medical testimony about whether the defendant breached the accepted standard of care and what impact that had on the patient. An expert appearing on your behalf may testify that you met the standard of care or that the patient may have experienced an expected adverse outcome.

The standard of care “may be dictated by national guidelines, recognized authoritative text, hospital protocols and managed care organizations,” according to the Physician Insurers Association of America (PIAA) A Practitioner’s Primer.. “Unfortunately, the standard of care is not a uniform measure and is imposed on doctors rather arbitrarily.”

The process of “dueling experts” is crucial to your case because a jury must choose which expert to believe. Your carrier will try to select an expert who can make the strongest argument to a jury on your behalf.

Should you fight or settle?

Most malpractice insurers have a committee of physicians who review the depositions, medical records, and expert advice to recommend whether to defend the claim or attempt a settlement. Note that:

  • 65% of malpractice claims were dropped, dismissed, or withdrawn before trial;
  • 25% of malpractice claims were settled;
  • 4.5% were decided by alternative dispute resolution; and
  • 5% were resolved at trial, with physicians prevailing in 80%-90% of those cases.

(Source: American Medical Association survey, 2010, covering years 2007-2008).

Poor documentation has led to the settlement of many otherwise defensible cases. Alterations or missing records “will automatically destroy most chances to defend the claim,” the ISMIE Physician Defendant handbook notes.

The credibility of witnesses, including the plaintiff and you, during depositions is a key factor in whether your carrier will recommend settlement. The witness’ demeanor can sway a jury to his side, often regardless of the objective facts. Insurers often swap war stories about cases in which they “couldn’t take the chance of putting the doctor in front of a jury”; even though the medical facts would have supported these doctors’ care choices, their attitudes would have inflamed the jury.

A jury could be swayed by sympathy for the plaintiff, whose age, appearance, and extent of injury must be considered. Finally, insurers may try to settle a catastrophic case if they fear that a “runaway” verdict could exceed policy limits. They will try to minimize the severity of a potential judgment from an unpredictable jury.

Can you refuse to settle?

In most cases, yes. Many medical professional liability carriers won’t settle a claim without prior notification and consent of the physician.

If the insured doctor won’t consent to settle, a review committee made up of peers will typically review the claim and provide its opinion. “The consent to settle clause in the policy can cost the insurer significant additional expense in defending the claim when it feels the claim has merit. However, having a consent to settle clause can provide the doctor with added peace of mind when facing stressful litigation,” PIAA notes.

Some policies contain a provision known as the “hammer” clause. This allows the carrier to decide the point at which a case should be settled. If a doctor does not agree with the insurer’s decision to settle, the insurer will proceed with the case but will limit its coverage to the amount of the originally proposed settlement. If the award is more than that amount, the insured is responsible for the amount above the original settlement offer.

How settling a claim could harm you

Any payment to a plaintiff, whether through settlement or jury verdict, becomes part of a physician’s malpractice history that can negatively affect insurability and premiums. If physicians refuse a carrier’s recommendation to settle a case, they could lose various premium discounts, pay higher premiums, or face difficulty in renewing a policy.

All indemnity payments are reported to the National Practitioner Data Bank (NPDB) and to many state health and insurance departments as well. The NPDB began collecting claim payment data in 1990. Each payment report includes information about the incident. Physicians may file written replies to explain their side of the circumstances of the incident.

Hospitals are required to query the NPDB twice a year and when a physician initially applies for privileges to practice at that facility. Although the data are available only to hospitals, HMOs and other health plans, licensing boards, and other entities engaged in credentialing physicians, several legislative attempts have been made to open the NPDB to the public. So far, they have been unsuccessful.

Nerve-wracking: The malpractice trial

Malpractice cases can take 4 years to resolve. The trial may not occur until 2 years or more after the lawsuit is filed. The trial usually takes a few days for most cases. The typical jury is 12 persons but can be as few as 6 in some locales.

Your performance as a witness under hostile questioning could decide the case. Address your answers to the jury. Face the jury and speak as you would when explaining medicine to a patient.

Make your answers complete. Unlike a deposition, where you are advised not to be expansive, take every opportunity at trial to state your position and demonstrate your expertise, ISMIE suggests. Try to provide jurors with all of the information that you think they will need to make an informed judgment.

Expect the plaintiff’s attorney to interrupt your answers in mid-sentence. Don’t let it upset you; it’s just a trial tactic to rattle you. Don’t fall for leading questions in which the plaintiff’s attorney may try to put words in your mouth. Avoid the hypothetical or general in favor of the actual and specific. If necessary, review medical records before commenting on them.

You can damage your credibility if you contradict your deposition, which may have been given a year or two before the trial. Review your deposition testimony before the trial. Don’t lose your temper when being questioned aggressively. If the plaintiff’s attorney insists on a yes-or-no answer, don’t get rattled. Your attorney may object and ask the judge that you be permitted to provide a more detailed answer.

The verdict is announced
After each side presents closing arguments, the jury will retire to discuss the case and reach a verdict. This could take hours or days; there is no standard amount of time for jury deliberation. Median indemnity payments (made to plaintiffs) were $200,000 for settled claims and $375,000 for tried claims.

(Source: American Medical Association survey, 2010, covering years 2007-2008.)

If the jury finds for the physician, the plaintiff receives no compensation. However, if the jury finds for the plaintiff, the verdict may be separated into economic damages, noneconomic damages, and, rarely, punitive damages.

Economic damages, sometimes called special damages, can include lost wages and other income, medical care, custodial care, lost earnings, lost earning capacity, and funeral expenses if the injury resulted in death.

Noneconomic damages can include awards for physical pain and suffering, mental distress, permanent impairment or loss of function, disfigurement, loss of the ability to enjoy life’s pleasures, loss of consortium, and death.

Punitive damages are awarded if the jury determines that the defendant’s conduct was malicious, grossly negligent, or in total disregard of the patient’s well-being, such as being under the influence of drugs or alcohol, notes the PIAA. Most insurance policies specifically exclude payment of punitive damages and the insured is usually personally liable for that award.

But it’s not over yet…

Average defense costs per claim range from a low of $22,000 among claims that are dropped or dismissed to a high of more than $100,000 for cases that go to trial.

Each side may appeal the verdict. The losing party generally will file a motion before the trial judge, who has the power to reverse the jury’s verdict, order a new trial, or reduce the amount of the award. The judge generally asks for written briefs on both sides and may hold a hearing. This decision could take several months, depending on the jurisdiction.

If the trial judge upholds the verdict, each side may appeal to the appropriate appellate court. That process can take years. Interest starts accruing on the award until that court makes a decision. (Source: American Medical Association survey, 2010, covering years 2007-2008.)

What if the award exceeds coverage?

The largest recorded medical malpractice verdict was $268,700,000, including $137,000,000 in punitive damages. A Dallas, Texas, jury made the award in 2001 in a case involving a 15-year-old girl with cerebral palsy who died of an anesthesia overdose after undergoing surgery to repair a narrowing of the trachea.

Over the past 10 years there have been 3 other awards of more than $200 million and 5 awards of more than $100 million.

(Source: Jury Verdict Research, Palm Beach Gardens, Florida, a firm that tracks and analyzes nationwide trends in personal injury litigation)

The vast majority of winning plaintiffs either settle for the physician’s policy limits, typically $1 million per incident, or a jury makes an award within the limits. However, in some cases involving severe injury and disability, a jury’s award could exceed the policy limits. What happens then?

Physicians rarely have to pay any of the excess award out of their own pockets, although it occasionally happens. “When families and patients are truly angry at the defendant physician, they may insist that the doctor personally pay a portion of the award,” says an ISMIE spokesman. In cases of multiple defendants, each one may negotiate to pay an amount beyond policy limits.

Note that the plaintiff’s attorney knows that the verdict can be overturned or reduced on appeal and that his client won’t receive any compensation until the appeals process is complete, often years later. That encourages negotiation and settlement, usually within policy limits and without the physician having to contribute his own funds, insurance experts say.

Author: Mark E. Crane
Freelance writer
Brick, New Jersey