Risk Management

How to Channel Your Anger into Winning Your Claim

By Neal R. Reisman, MD, FACS, FACMQ, and Steven M. Gonzalez, JD

Digest, Fall, 1992

Many ophthalmologists are so outraged and hurt when they are served with a malpractice suit that they understandably do not want to get involved. They prefer to let their attorneys handle this “nuisance” alone. The ophthalmologist, increasingly irritated by the onslaught or requests for material and documents that must be provided in a timely fashion, often becomes further removed from the upcoming battle.

This is a mistake. The legal system allows for resolution of claims in a civilized fashion. It is a system within which the parties can work to resolve their disputes. Using this system to its fullest allows the defendant the greatest chance of winning and ending this ordeal.

The purpose of this article is to suggest how you can contribute to the defense and make the difference between winning and losing. There are important stages in any medical malpractice case, and at each juncture, you are best served by participating rather than withdrawing. Use your anger and energy to help your attorney win your case.

A medical malpractice suit begins with service of citation and court papers outlining the charges against you. Upon receipt of suit papers, you should contact OMIC or your malpractice carrier and provide the insurer with copies. Incredibly enough, some physicians stick suit papers in their desk drawer or otherwise fail to report the actual “service” to their malpractice carrier or attorney.

Failure to allow your insurer to timely respond by filing a denial in the form of an “Answer” can and does result in a default judgment on issues of liability and even dollar damages. You can therefore lose your case without even having the opportunity to present your side. Although default judgments are overturned for good cause, physicians subject themselves to considerable exposure by not taking suit papers seriously. Such actions may also jeopardize your insurance coverage.

Your Attorney

Soon after receiving notification of the lawsuit, OMIC or your carrier will assign a particular attorney to defend your case. That attorney may be familiar with ophthalmic malpractice cases but will not be a medical expert in this specialty. You also must recognize and accept that you are not an expert in law or in the courtroom.

The best thing you as a defendant ophthalmologist can do is immediately develop good rapport with your attorney and carrier so you can work together as a team, complementing each other.

The attorney-client relationship is much like the physician-patient relationship. All physicians have had demanding patients. Physicians do not look forward to seeing these patients or being subjected to their demands. Attorneys likewise do not appreciate being ordered around by their clients.

Try not to vent your anger toward the plaintiff’s counsel on your own attorney simply because they are both lawyers. The defense attorney usually does nothing but defend physicians and shares some amount of philosophical disdain for the plaintiff’s claims.

You also must recognize that your attorney’s time is just as valuable as your own. Each of you is an expert in your area, and you should work together toward resolving the suit. It is important to visit your attorney at his or her office. Just as you are limited in your ability to provide total care without all your tools at your disposal, an attorney is limited outside his or her own office. All of the details of your case, the lawyer’s support staff, and appropriate law references are available in his or her office. It soon becomes clear that your meetings will be more fruitful there.

The Preparation

Upon learning of defense counsel assignment, pick up the telephone and introduce yourself to your attorney. Get involved from the beginning. Gather and forward as much information on the patient as possible. That includes your office records, telephone message slips, telephone prescription refills, and anything else reflecting your past involvement with the plaintiff.

As depicted in the popular movie The Verdict, altering or destroying records can not only lose the case but can provide the basis for punitive awards. To this end, do not remove the hospital chart or records of other facilities. Allow your attorney to gather these records by agreement with opposing counsel or court subpoena.

The more your attorney knows about the medical issues the better. It is your job to educate him or her. Sit down with the medical chart, dictaphone in hand, and prepare a narrative of not only the events that took place, but also of the medical issues involved in your case.

For instance, if your case involves the failure to remove the nucleus from the vitreous cavity during an attempted phako procedure, begin your narrative by outlining the anatomy of the eye, the background development and purpose of the procedure, a step-by-step report of how the procedure is performed, and a justification for performing the procedure on this particular patient.

Next, there should be a chronological outline, including each and every office visit with the patient, leading up to hospitalization. Include a typed transcription of all illegible notes from your office chart or the hospital record.

Notes reflecting discussions with the patient or family, including warnings of possible complications, should be highlighted. When possible, reference should be made to the date and time of specific entries in the medical chart, documenting these warnings or any other important occurrence.

This information, called “work product,” is created by you solely for your attorney’s use. It is considered privileged and cannot be subpoenaed by opposing counsel. It should be shared with no one and should be kept in a safe place.

Do not leave copies of your work product lying around in the open. Many times, office staff will place anything related to a lawsuit in the particular patient’s office chart. Down the road, at depositions or even in court, physicians have been known to carry into court not only the patient chart, but also their work product and correspondence with their attorney, making it available to opposing counsel. A separate folder should be maintained for materials related to the lawsuit, including notes and correspondence between you, your attorney and your carrier.

Educate Counsel on Medical Issues

Once you have forwarded your defense narrative to your attorney, set up a meeting in his or her office. Most times, you will find that your attorney is more than willing to meet with you and spend as much time as desired explaining the legal process, the status of your case, and where he or she thinks your defense should be headed.

This is also an opportunity to educate your attorney, supplement your narrative and answer any questions your attorney may have concerning medical issues. Take a notepad, and begin a continuous sequence of notes for the entire case, including any instructions from your attorney. Be prepared to identify members of your staff, hospital personnel, pharmacies, and other people peripherally involved with your care of the plaintiff. Provide that information as soon as possible. If this is not done early, witnesses may disappear, and records of medications and the like may be destroyed by the time of trial.

Medical literature is a valuable weapon in the defense armamentarium. Start doing medical research into the area in question, but only with your attorney’s prior approval. Use all resources at your disposal to develop a library on the topic. As you know, medicine is filled with differing opinions. You can bet the plaintiff will find and use a different opinion from yours to attempt to prove that you deviated from the acceptable standard of care.

By preparing this library, you will soon learn who the “experts” are nationally and locally. Through your carrier and attorney, your defense team may find it necessary to consult one or more of these experts. You also may find that the plaintiff will hire one or more of these experts to testify against you. Many times, publications by the plaintiff’s expert can be used to discredit that expert, water down his or her opinions, and make him or her appear biased against you.

Throughout the handling of your case, you should keep abreast of the papers filed by the various parties, including answers to discovery (interrogatories, requests for production), deposition transcripts, and amended or supplemental allegations. Ask your carrier and attorney from the outset to place you on the copy list so you will routinely receive copies of this paperwork. Upon receipt, review these materials, and make notes for yourself and your attorney. Also, ask your attorney to copy you on the correspondence with the insurance carrier. That will keep you abreast of its evaluation of the case.

Depositions

Most malpractice defense lawyers will attempt to take the plaintiff’s deposition before offering their client for pretrial deposition, although this is not always possible. When the plaintiff or the plaintiff’s family is deposed, you should attend and assist your attorney with questioning.

Ask your attorney to notify you of all depositions, not only of the adverse parties, but of all co-defendant physicians and hospital personnel. Take the time to attend these depositions, and assist your attorney in preparation and questioning during the deposition.

Do not be discouraged by all the cancellations and rescheduling of these depositions. Explain to your staff how important your attendance is, and have them help you with your schedule adjustments.

There are pivotal turning points in any medical malpractice case. One of these is the defendant’s deposition. Make sure to allow yourself enough time for preparation. By now, you and your attorney should have a mutual understanding of the medical and legal issues of the case. You should be aware of the specific allegations against you. Defense attorneys typically have routine deposition advice for their clients. Schedule a meeting with your attorney several days in advance of the deposition. That will give you time to digest the content of the predeposition conference. Listen to the advice of your attorney. Take notes for study during the next few days before the deposition. If you have additional questions, write them down, and call your attorney.

It is important to go into the deposition with a clear mind and a firm understanding of your defense theories. Typical deposition issues include entries or the absence of entries in the medical chart, informed consent, authoritativeness of specific text or journal articles, the “hypothetical patient,” board certification, and applicable standards of care. You should be prepared to respond to these specific areas. Time with your attorney will offer you that opportunity.

Expert Depositions

The next critical step in pretrial discovery is expert depositions. The plaintiffs normally will have identified their experts weeks or even months before their depositions are taken. That gives you plenty of opportunity to gather any publications written by opposing experts and to sit down and help your attorney through this material.

When possible, the defendant ophthalmologist should personally attend the deposition of the plaintiff’s expert. Even though the so-called “expert” against you may be from out of town, it is important to take the time and expense to attend the deposition.

Research every article and writing of the plaintiff’s experts. Bring copies of the pertinent works with you to the deposition for cross-examination. You will be surprised how many times these “hired guns” soften when you are at the deposition, with their articles in hand, directly across the table. You also can help your attorney with follow-up questions based on answers given during the deposition. You can use your library of articles to prove your point. At worst, your attorney may be able to show that ophthalmologists often disagree and that accepted opinions may differ.

Your Experts

You are your own best expert. Unlike the plaintiff in a medical malpractice case, you have a distinct advantage of being able to testify to issues of negligence involving applicable standards of care, causation and damages, all of which are essential components of a malpractice case.

In a recent case, a defendant ophthalmologist offered compelling testimony as to the position and density of the plaintiff’s cataract prior to surgery, which only he could attest to. The plaintiff’s experts had never examined the plaintiff and were unable to rebut this testimony offered by the defendant ophthalmologist. The defendant ophthalmologist’s testimony was the only credible evidence on the preoperative condition of the eye. This is very often the case and the defendant should bear in mind this built-in advantage over the plaintiff’s experts who have often never seen the plaintiff.

To be an impressive expert, you must be well versed in the relevant literature. It is not wise to recognize any particular journal or article as completely authoritative, although medical literature can be used to support expert opinion.

It generally is not a good idea for you to contact experts who may eventually testify on your behalf. However, you should provide your attorney with the names of experienced colleagues who might be of help. It is not necessary to attend your own experts’ oral depositions. Transcripts can be made available. To avoid the appearance of bias, you should, to the extent possible, remain independent from these testifying experts. You can pass necessary information to your experts through your attorney.

The Trial

You and your attorney are now prepared for the ensuing battle. You know the area of controversy, both legal and medical. You are a true expert in the area in question. From the time suit papers were served through the trial, you have furthered your cause. You will be called upon to testify, and you now have the opportunity to defend yourself. You are the most important witness in the trial. Lawyers and judges do not win or lose medical malpractice cases; physicians win or lose their own cases. Be honest with yourself and your attorney. Critique your care, and consider the opposition’s side. List your weaknesses, and plan your response to each item. Try to develop a rebuttal to each of these points.

The stronger your case is through preparation and making the opposing expert “impotent,” the greater your chance the case will be either dropped or settled if the merits dictate. If the case does go to trial, you will be well prepared to defend your actions. Your demeanor in court and the mechanics of trial will be discussed by your attorney before jury selection.

Do not underestimate your ability not only to help your cause, but often to win your case by becoming involved. Channel your anger, hurt, frustration, resentment and energy into your case. Not only will this make you feel better, but you can and will make a difference.

(This article originally appeared in Anesthesia Malpractice Protector, November, 1989. It has been adapted and edited by the authors for publication in the Digest.)