The Role of the Expert Witness

 By Jerome W. Bettman Sr., MD

Digest, Fall, 1992

At some point during their professional life, many ophthalmologists are asked to serve as an expert witness, either on behalf of the plaintiff or the defendant. The function of an expert witness is to help define the standard of care as it pertains to the case under consideration and to render an opinion as to whether the care provided met this standard.

Legal standards of care are not necessarily what a majority do, but what a minority of acceptable ophthalmologists would do. The fact that the expert might not do it is not germane to his or her opinion.

Evaluating whether the care provided was substandard may be difficult. There are many gray areas and an expert witness should be cautious about stating that care was substandard because once this is indicated, the plaintiff’s attorney will not desist.

The expert is not rushed and has the advantage of being able to evaluate all aspects of the case in retrospection. The treating physician did not have this advantage. Errors in judgment do not constitute substandard care. However, if care was indeed substandard the expert must say so and be willing to testify to it.

The Discovery Process

It is essential that the expert be acquainted with certain fundamentals of giving a good deposition. The deposition is as important as the trial itself and often determines whether there will be a trial. The deposition is part of the discovery process and should be considered a continuous cross-examination conducted by the opposing attorney. The attorney is attempting to learn facts about the case and whether the care was substandard. The attorney also is determining what impression the expert witness will make on a jury, and laying the groundwork so it appears that the witness is contradicting him or herself when similar questions are asked in trial.

In light of this, it is essential that all answers be brief and to the point. A simple “yes” or “no” answer is often the best one. Be careful about “Yes, but….” and “No, and…” answers. What is said after the simple yes or no may cause problems later.

An expert should listen carefully to the question, answer it truthfully, and not amplify the answer. Compound questions should be broken up before answering. Do not hesitate to say “I don’t know.” Do not allow attorneys to put words in your mouth and thereby alter your intended meaning.

A Contest of Impressions

A trial is a contest of impressions. Juries are frequently faced by expert ophthalmologists on each side who give conflicting opinions. Expected to weigh one opinion against the other, juries must consider the relative qualifications and credibility of each expert and the basis for each opinion. Juries give great weight to the demeanor of witnesses and whether testimony is given in a logical, convincing manner.

An expert witness must meet certain ethical and legal requirements: expertise in the area of concern, honesty, impartiality, imperviousness to monetary considerations. Qualifications should be stated clearly but not arrogantly. The expert should dress and act conservatively, and speak to the jury as a kindly, helpful educator would speak to novices. Use both lay and scientific terminology. The former so the jury will understand it and the latter so the meaning is clear in the event of future disputes or retrials.

Listen carefully to the long hypothetical case that will be presented and attendant questions before answering. Do not agree unless you agree with every part of it. Do not hesitate to ask that it be repeated. Never get angry or argue with an attorney. Be truthful. Do not exaggerate or amplify.

Expert for the Plaintiff

Should an expert witness take cases for the plaintiff? There are several reasons why an expert who takes cases for the defendant also should accept them for the other side:1

• The vast majority of plaintiffs’ cases are without merit. An honest, knowledgeable expert can influence the plaintiffs’ attorney to drop these cases at an early stage, thereby saving time, money and emotional trauma.
• It adds to one’s credibility as an expert witness.
• It is only fair that each side obtains good advice.
• Dishonest witnesses are available if honest ones refuse.

Setting Fees

Expert witnesses typically charge for their time, effort and expenses involved in preparation for and during a trial. The fee charged may depend on the credentials and experience of the expert and may vary according to geographic area. Hourly rates are usually preferable to flat fees. Avoid having your compensation be contingent in any respect on the outcome of the litigation. Ask for advance payment from a plaintiff’s attorney who is not well known to you. Send an itemized bill of actual time and services rendered and expenses incurred once your service is completed.

For further guidance on serving as an expert witness, contact OMIC for copies of three statements on this subject published by the American Academy of Ophthalmology: Textbooks, Journal Articles and the Standard of Care; Expert Testimony by Ophthalmologists; and Some Suggestions for Determining Compensation for Expert Testimony by Ophthalmologists.

Notes:

1. Bettman JW. Problems of Conscience and Fact. Survey of Ophthalmol. Sept-Oct 1984;29(2):137.

Medical Board Investigations Should Not be Faced Alone

By Ryan Bucsi, Mr. Bucsi is a Senior Litigation Analyst with OMIC’s Claims Department.

Digest, Winter 2007

You would never attempt to represent yourself in a medical malpractice lawsuit and assume responsibility for taking all the necessary depositions, preparing your own trial exhibits, examining witnesses during trial, and convincing a jury that your care and treatment met the standard of care. You know that if you are faced with a malpractice complaint, your first course of action should be to call OMIC’s claims department so we can put you in touch with a defense attorney who will represent you throughout the course of litigation.

What you may not know is that OMIC is also here to defend you if you receive a letter of investigation from your state medical board regarding patient care you have rendered. Some insureds have failed to report these letters of investigation until after they have responded on their own. Unfortunately, when there is a significant delay in reporting the investigation to OMIC, the results can be as catastrophic as attempting to defend your own malpractice lawsuit.

For example, an OMIC insured received a letter of investigation from her state board requesting a complete copy of a patient’s chart. There was no request or requirement that the insured provide a written description or narrative of the patient’s care, just a request for the chart. Without contacting OMIC for advice, the insured not only sent the requested records to the medical board but also a detailed narrative outlining her treatment of the patient. The insured did not hear back from the medical board until a year later when she received a letter notifying her that the board had concluded its investigation and was bringing disciplinary charges against her.

In the year that passed between the request for the patient’s chart and the notification of disciplinary action, the state board had been busy retaining experts who testified that the insured’s care was indeed below the accepted standard. Based on this expert testimony, the board proposed the following disciplinary action against the insured: a fine in the thousands of dollars, reimbursement of the costs associated with the state board investigation, a letter of reprimand, community service, and continuing education.

It was at this point that the insured contacted OMIC for assistance. An attorney was assigned to represent her and experts were retained on her behalf. Unfortunately, the insured had put herself at a great disadvantage by directly responding to the medical board, and no facts that OMIC or defense counsel presented could persuade the board to reverse its decision or reduce the proposed penalties. In the process, the insured’s defense coverage limits for this investigation were exhausted. Had the insured contacted OMIC as soon as she received the initial letter of investigation, OMIC would have assigned legal counsel to assist her in writing a response, which could have improved her chances for a more favorable decision from the state board.

OMIC Policy Covers Defense of Medical Board Investigations

Most physicians are not properly trained to respond to medical board inquiries and investigations in a manner that benefits their position. The initial letter from a state medical board may seem like a harmless request for records or information on a patient; however, your initial response is vitally important and may determine whether the board proceeds with an investigation or dismisses the complaint. Significantly, medical board or licensure actions can result in suspension of your medical license, thus making these cases far more risky than a medical malpractice case.

Insureds should treat a notice of medical board investigation the same way they would treat a patient complaint letter or request for information from a plaintiff attorney and contact OMIC before responding. OMIC defense attorneys are experienced in dealing with medical board actions and oftentimes are familiar with the individuals in charge of the investigations. This type of firsthand experience is invaluable when preparing a response to a letter of investigation and may reduce the likelihood that the medical board will pursue the investigation further.

Coverage for state board investigations is included as a part of your OMIC policy: “OMIC shall defend any insured ophthalmologist…against any investigation, disciplinary proceeding, or action for review (hereinafter “investigation”) of the insured’s practice by any federal, state or local regulatory agency arising from a complaint or report by a patient to such an agency of an injury to that patient resulting from a professional services incident involving direct patient treatment provided by the insured. However, OMIC will have no liability for fines, sanctions, penalties, or other financial awards resulting from the investigation.”

Please note that OMIC provides defense coverage only and there is a limit to this coverage: “The most OMIC will pay per insured for the claim expenses for any one such investigation is $25,000. The most OMIC will pay per insured for claim expenses for all such investigations during the policy period or the extended reporting period will be $75,000.”

It has been OMIC’s experience that meeting or exceeding the $25,000 expense limit is rare. In OMIC’s history, only six cases have reached or exceeded the $25,000 coverage limit. In fact, in a review of 46 closed medical board cases, the average expense for these matters was roughly $5,000. The attorneys assigned by OMIC to handle these cases are aware of this limited defense coverage and have negotiated their hourly fees with OMIC accordingly. This gives OMIC insureds the best combination of experience and value as our attorneys will attempt to resolve the matter within policy limits, thus avoiding out-of-pocket defense expenses for the insured.

Patient Complaint Often Precedes Malpractice Claim

A patient complaint to the state medical board has all the attributes of a malpractice claim except that the patient is not demanding money from the insured. OMIC’s rationale for providing defense coverage for medical board investigations is that these cases are often precursors to impending legal actions. A patient who complains to an investigative entity is most likely unhappy with the insured’s care and might later decide to file a medical malpractice claim against the insured.

State medical boards have a duty and a right to investigate patient complaints. Even if the allegations seem frivolous and you do not personally have concerns about your care and treatment of the patient, it is still wise to refer the case to OMIC so an attorney can respond on your behalf. Any OMIC insured is susceptible to these types of complaints; however, the majority of cases historically come from a handful of states, notably Florida, Arizona, and Nevada. OMIC has also defended state board investigations in California, Colorado, Texas, Illinois, Massachusetts, Washington, and Virginia. Regardless of which state you practice in, if you receive a notice of a state board investigation, please contact OMIC immediately.

When OMIC is brought in to defend these investigations early on, it has an excellent history of resolving them without fines or penalties being levied against the insured. Of 46 closed cases involving medical board investigations, 39 were dismissed without any type of adverse outcome for the insured. In all but two of these 39 cases, OMIC had assigned legal counsel on behalf of the insured. In the two cases that went before the state board without legal representation, the insureds did not report the complaint to OMIC until after they had responded to the initial letter of investigation. In the seven cases with adverse outcomes, the insureds were fined anywhere from $1,000 to $10,000 in addition to the costs of the investigation. They also were required to perform hours of community service and undertake continuing medical education. The complaints in these seven cases pertained to wrong site surgery, wrong surgery performed, or incorrect implantation of intraocular lenses.

It is important to note that once disciplinary action has been taken by a state medical board, it reports the action to the federation of State Medical Boards and the National Practitioners Data Bank. Furthermore, the physician is required to report any such action to other states where he or she practices or has a medical license. OMIC recommends that insureds consult with their OMIC-appointed attorney regarding reporting requirements of state board actions.

In summary, the same type of caution that is applied to medical malpractice claims and lawsuits should be applied to state medical board investigations. Insureds should contact OMIC’s claims department as coverage for such occurrences exists within your OMIC policy. OMIC has experienced defense attorneys to assist insureds in responding to such inquiries. The goal of legal representation is to decrease the likelihood that an investigation will proceed past the initial stages and result in the levying of fines or disciplinary action against the insured.

State Medical Board Actions

As a matter of public policy, the practice of medicine is a privilege granted by the people of the state acting through their elected representatives. It is not a natural right of individuals. Therefore, each of the 50 states, the District of Columbia, and the U.S. territories has a medical practice act that defines the practice of medicine and delegates the authority to enforce the law to a state medical board. In most states, the board regulates both allopathic and osteopathic physicians; in others, separate boards exist. There are currently 70 state medical boards authorized to regulate physicians.

Some of the functions of a state medical board include licensing physicians, investigating complaints, disciplining those who violate the law, conducting physician evaluations, and facilitating rehabilitation of physicians where appropriate. State laws require that boards assure fairness and due process to any physician under investigation.

Although medical boards sometimes find it necessary to suspend or revoke a license to practice, regulators have found that many problems can be resolved with additional education or training in appropriate areas.

In other instances, it may be more appropriate to place a physician on probation or place restrictions on a physician’s license to practice. This compromise protects the public while maintaining a valuable community resource in the physician. Probation and restrictions on a medical license may be in place while a physician receives further training or rehabilitation.

If a state medical board determines that a violation has occurred, it may take any of the following actions:

Reprimand or Censure – Physician receives a public admonishment.

Administrative fine/Monetary Penalty – Physician must pay a civil penalty fee imposed by the board.

Restitution – Physician must reimburse a patient or entity for monies improperly earned.

Probation – Physician’s license is monitored for a period of time.

Limitation or Restriction – Physician’s license is restricted in some way (e.g., a physician may be prohibited from performing specific procedures or prescribing certain drugs).

Suspension – Physician may not practice for a period of time.

Summary Suspension – Physician’s license is suspended immediately based on evidence that the physician’s practice presents a threat to public health and safety.

Voluntary Surrender of License – Physician surrenders license to avoid further disciplinary action.

Denial – Physician is not granted a license to practice or license is not renewed.

Revocation – Physician’s license is terminated and physician can no longer practice medicine.

To find out more about your state medical board, go to the federation of State Medical Boards’ website at www.fsmb.org/index.html.

What Is Medical Malpractice?

By Joe R. McFarlane Jr., MD, JD, and Paul Weber, JD

Digest, Spring, 1993

You have just experienced a bad result. Perhaps the posterior capsule ruptured and the nucleus sank back into the vitreous, or the child with a previously esotropic eye awoke from muscle surgery with exotropia, or your patient had an expulsive hemorrhage or cardiac arrest during surgery. Have you committed medical malpractice? Not necessarily. A bad result in and of itself, does not constitute malpractice.

Four Elements of Negligence

When an ophthalmologist is sued for medical malpractice, the usual cause of action is negligence. Negligence is a tort, a private or civil wrong or injury resulting from breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or private relationship. The plaintiff has the burden of proof to establish four elements for a finding of negligence:

The existence of a legal duty to use due care owed by a defendant ophthalmologist to a patient;

I. Breach of that duty;

II. Causation;

III. Damage or injury to the patient.

IV. If one of these elements is not established by the plaintiff, a cause of action for negligence fails.

I. Legal Duty

In cases regarding alleged medical negligence, the legal duty of due care is established by the physician-patient relationship. The ophthalmologist usually establishes this relationship by rendering professional services to the patient. It is possible for a physician-patient relationship to be established without the patient ever being examined by the ophthalmologist. The most common instance is where an ophthalmologist gives advice or prescribes medication over the telephone.

A physician may be sued for malpractice even when direct patient care is not involved. For example, an ophthalmologist who shares night or weekend call with other ophthalmologists may be subject to a malpractice action for breach of the standard of care in selection of the covering ophthalmologist if the covering ophthalmologist should commit malpractice.

II. Breach of Duty

Once the existence of a legal duty is determined by the court or the jury, the next element the plaintiff must prove is breach of that legal duty of due care or breach of the standard of care. The standard of care in a medical negligence action requires that a physician exercise the degree of knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. The breach may be a failure to diagnose, delay in diagnosis, improper treatment, failure to obtain informed consent, and/or substandard care including substandard surgery. In performing professional services for treatment of the structure, function and diseases of the eye, an ophthalmologist will be held to the higher standard of care of a “medical specialist” based upon his or her specialized training. And, the “medical specialist” standard may be even further extended to subspecialties within ophthalmology.

For breach of the standard of care to be proven in a medical negligence action, generally there must be expert testimony from a physician in the same medical specialty and subspecialty as the defendant. Such testimony is necessary to establish the standard of care and whether or not the standard had been met. A general practitioner who performs the same procedure as an ophthalmologist is competent to testify as an expert against the ophthalmologist with respect to that particular procedure (e.g., giving a fluorescein stain to determine whether there are defects or abrasions on the cornea). Likewise, an ophthalmologist can testify against a general practitioner, but only with reference to the standard of care expected of a general practitioner.

In most courtroom situations, however, each side will want the best qualified expert in a particular specialty or subspecialty. And, the jury will be instructed to appraise the special knowledge, skill, experience, training and education of each expert witness when considering the testimony.

III. Causation

The third element to be satisfied for medical negligence is causation. Causation is sometimes further broken down into actual cause and proximate cause. Thus, if it is established that a breach in the standard of care occurred in a particular cataract operation, and later the patient has an unrelated central retinal vein occlusion, resulting in loss of vision, the element of actual causation would not be satisfied in that the injury of which the patient complained, the loss of vision, was not actually caused by the breach.

Likewise, an injury can be so remote from the breach that the ophthalmologist could not have “foreseen” it. The concept of proximate cause defies precise definition and has given courts and commentators much difficulty in that regard. An eminent legal scholar, Dean William Prosser, wrote:

“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.”1

For example, an ophthalmologist treats a 4-year-old boy with atropine drops in the right eye. The child develops an allergic reaction, an eczematoid rash around the eye. Due to itching and burning around the right eye, the child inadvertently scratches his left eye, causing a corneal abrasion. The right eye clears up, but the scratch in the left eye develops into a corneal ulcer. Complications lead to eventual loss of the left eye. Upon review of the medical record, it is discovered that the doctor failed to read the child’s prior medical history indicating a previous allergic reaction to atropine. At issue is whether the loss of the left eye was proximately caused by the ophthalmologist using contraindicated drops in the right eye, or whether loss of the left eye is too remote.

Proof of causation, like proof of breach of the standard of care, is usually established by expert testimony. An expert is generally necessary to establish the causal link between the injury complained of and the practitioner’s actions. There are exceptions to the requirement of expert testimony where causation may sometimes be inferred based on the so-called “common knowledge” of the jury.

Another exception to the requirement of expert testimony to prove breach of the standard care and causation is the doctrine of res ipsa loquitur, Latin for the thing speaks for itself. This is a rule of evidence whereby a presumption of negligence of the alleged wrongdoer may be inferred from the mere fact that the injury occurred, provided three conditions are met:

• It is the kind of thing that does not ordinarily happen without negligence;
• It must have been caused by an agency or instrumentality within the exclusive control of the defendant-ophthalmologist;
• It was not due to contribution or voluntary action by the plaintiff.

Some jurisdictions are relatively generous in allowing a plaintiff to apply the doctrine of res ipsa loquitur in medical negligence cases. This liberal application by the court requires the defendant-physician to explain the reason for the plaintiff’s injuries or suffer the penalty of an adverse finding in the absence of such explanation.2 For example, the doctrine of res ipsa loquitur would apply to a situation in which a patient wakes up in the post-anesthesia recovery room following cataract surgery with a broken ankle. In such a scenario, all three elements of res ipsa loquitur theoretically would be met.

In some cases, expert testimony still may be required to establish one of the elements necessary for the application of the res ipsa loquitur doctrine. For instance, in cases involving complex or rare medical procedures it may be necessary for an expert to testify that the injury or occurrence is the kind of thing that does not ordinarily happen without negligence, the first element of res ipsa loquitur.

IV. Damages

The fourth element the plaintiff must prove in a medical negligence case is damages. A patient must have been injured in some way by the breach of the standard of care for medical negligence to exist. The measure of damages is the amount that will compensate for the injury proximately caused by the defendant. These are called “compensatory damages” and are further subdivided into economic and non-economic damages. Possible economic damages might include lost wages and medical expenses (past, present and future). Non-economic damages are subjective and include pain, physical impairment, mental suffering, inconvenience, loss of society and companionship, and humiliation (past, present and future). In some jurisdictions, non-economic damages are limited by law in medical negligence cases; for example, in California non-economic damages may not exceed $250,000.

In certain jurisdictions, an injured patient’s spouse may claim damages for loss of consortium should the injury to the patient be severe enough. These damages include not only the loss of the spouse’s financial support, but also loss of the love, companionship, sexual relations and society of that spouse.

Affirmative Defenses

Even though a plaintiff may prove all four elements of negligence, a defendant-physician can raise defenses which may bar or diminish the plaintiff’s claims. One defense is the failure of the plaintiff to commence the action within the time limits set by statute in the jurisdiction where the case is being brought. This is referred to as the statute of limitations defense.

Another defense is that of contributory negligence or comparative negligence by the plaintiff. Contributory or comparative negligence is conduct by the plaintiff that falls below the standard expected of a person for self-protection. It is a legally contributing cause, in addition to the negligence of the defendant, in bringing about the plaintiff’s harm.3

The statute of limitations defense and the contributory negligence defense are referred to as affirmative defenses, and the defendant has the burden of proving the elements of each of these defenses. While negligence is by far the most common medical malpractice cause of action, other causes of action that may be asserted include battery (usually arising from lack of informed consent), abandonment, breach of contract, and misrepresentation (fraud). Each cause of action has elements that must be established before a plaintiff may recover money damages.

This article is intended to provide a general overview of negligence as it applies to medical malpractice. As it suggests, there are frequently no clear answers to the question “Have I committed malpractice?” Questions about bad results after treatment or untoward events should be directed to the claims representative or risk manager of your professional liability insurance company, or to an attorney experienced in medical malpractice. OMIC insureds are encouraged to call the OMIC office at 1-800-562-6642 and speak with Mary Kasher, claims manager, at extension 21 or Paul Weber, risk manager, at extension 15.

Notes:

1. Prosser, Keeton: Law of Torts (Fifth Edition).1984;7(41):264.
2. Levy, Golden, Sacks: California Torts. 1988.
3. Gifis SH: Law Dictionary (Second Edition). 1984.

The Psychological and Emotional Impact of Being Sued

By Jerome W. Bettman Sr., MD

Digest, Fall, 1993

You have just received a letter from a patient’s attorney informing you that a malpractice claim has been filed against you because of negligent care of the patient, which resulted in severe impairment. The letter suggests you contact the attorney’s office to work out a settlement.

It is not uncommon that the first notice of a claim against a physician is an intimidating letter from the patient’s attorney threatening a lawsuit while at the same time offering a settlement. It is the “iron hand in a velvet glove” approach and the opening move by plaintiff’s counsel to unhinge the physician psychologically and emotionally.

The Medical Malpractice Stress Syndrome

Like the above-described threatening letter from a patient’s attorney, much of what takes place during the course of litigation causes alarm, anger and anxiety, leading to what is commonly referred to as “the malpractice stress syndrome.” This syndrome is well recognized and has been documented by a number of researchers.1, 2

Over the course of a medical malpractice claim, it is not uncommon for a defendant physician to develop one or more symptoms related to this syndrome. These symptoms include: anger, inner tension, irritability, insomnia, anorexia, difficulty in concentration, negative self-image, feelings of being misunderstood, decreased self- confidence and decreased libido. Like most psychological maladies there is no cure for the syndrome, but steps can be taken to diminish and cope with the symptoms.

Take Positive Action

The first action to take when confronted with a claim or lawsuit should be reflexive: NOTIFY YOUR INSURANCE CARRIER AT ONCE. When you notify your carrier, you will be counseled by a claims professional who will be able to answer many of your questions regarding the claims process. An attorney will be assigned to your case who is experienced in defending medical malpractice lawsuits. The insurance carrier will advise you what to do and what not to do as a defendant-ophthalmologist. These admonishments may include:

• Do not speak to the plaintiff’s attorney, no matter how kind and cooperative he or she seems to be. Any contact must be between your attorney and the plaintiff’s attorney.
• Do not add to or alter your records no matter how tempting it may seem to do so, or how cleverly you think you can do it.
• Do not discuss the specifics of the case with anyone except your attorney.
• Do not look up relevant literature without the permission of your attorney. [However, if a review of literature is done at the request of your attorney and the two of you discuss it, the research may be cloaked in the attorney-client privilege. If your research is damaging to your case, it will not be discoverable by the other side or introduced at trial if the attorney-client privilege applies.]
• Do gather all the patient’s medical records and keep them in a safe place in your office.
• Do keep correspondence from your carrier in a separate file from the patient’s medical record.

Anger is a common reaction to a claim or lawsuit and a physician’s anger may spill over to the insurance carrier, the attorney and the court system as a whole.3  Do not permit anger to cause you to do things that could diminish your defense such as not reporting immediately to your insurance company, or not working closely with the attorney it provides.

One effective way to cope with the stress of a lawsuit is to take an active role in your own defense. This assumes a basic trust in your attorney and a willingness to take direction. Share all information about the case with your attorney no matter how bad it might seem. Your attorney can only prepare a defense against the negative aspects of the case by knowing what they are. Share your knowledge of the facts and educate your defense counsel about the clinical aspects of the case. Although your attorney may be well versed on many areas of medicine, ophthalmology claims are comparatively infrequent and some help in understanding eye diseases and treatment may be needed.

Your attorney will retain an expert in your defense; however, as the medical expert most knowledgeable about the care you gave the patient, you are an essential part of the defense team. Help your attorney understand the weak points and strong points of the medical matters in your particular case.

Facts About Medical Malpractice Lawsuits

The depression, worry and negative self-image that arise from the malpractice stress syndrome may be somewhat alleviated by the realization that a plaintiff’s claim does not mean the physician is a poor ophthalmologist. Claims are filed against one in six to one in eight doctors every year, the precise incidence varying with the jurisdiction. In some geographical areas, more than one out of every two physicians has been sued! Claims are filed against all types of practitioners. Internationally renowned ophthalmologists as well as department chairmen at major universities are sued. It is simply one of the hazards of practicing medicine.

Most claims against physicians do not result in a payment to the plaintiff and very rarely do the claims go to trial. Data from the Physician Insurers Association of America (PIAA, an organization of some 45 doctor-owned professional liability insurers) indicates that only 25% of claims against ophthalmologists result in an indemnity payment to the plaintiff and only 5% of these indemnity payments result from a trial. OMIC’s own data shows that only 22% of claims against its insureds result in an indemnity payment. Furthermore, a study of 976 medical malpractice lawsuits filed against physicians in New Jersey showed that juries found in favor of the physician in about 76% of the cases where there was a jury verdict.

Therefore, the physician who is sued should realize at the outset that the overwhelming majority of claims are resolved prior to trial in favor of the physician, and of those that do go to trial, the jury usually finds for the physician. Remember these facts when you awaken at 3 a.m. with visions of losing your possessions, or not being able to send your children to college.

An actual case in point may give you an idea of how overwhelming these feelings of hopelessness can be. The first trial of a defendant-ophthalmologist lasted for weeks before ending in a “hung” jury. A long period of time elapsed before the second trial during which the ophthalmologist obsessed about losing his practice, his good reputation, etc. The second trial ended in a verdict for this ophthalmologist, but he had worried so much about the possibility of “losing everything” that he wasn’t able to practice for several months.

Adjust Your Schedule and Activities

Initiation of a medical malpractice lawsuit by a patient may have a noticeable effect on the physician’s practice, resulting from a changed attitude toward patients. Avoid viewing patients as potential plaintiffs and continue to practice the best medicine you can as a caring and competent physician. Spend a few extra minutes with each patient to affirm the rapport necessary for a good doctor-patient interaction.

A study of 1,747 open and closed claims by the Physicians Insurance Company of Michigan showed an increased risk of a second litigation-producing incident within a year of receiving notice of the first claim. Due to the stress generated by a lawsuit, the defendant-physician might wish to reassess his or her work schedule and related activities. Temporarily decreasing one’s patient load or scaling back on practice hours may relieve the stress created by a lawsuit and free the physician to devote more effort to mounting a strong defense in the pending lawsuit. It also frees up time for family and friends, which is important during this stressful time. Involvement in non-practice-related activities such as teaching or a favorite hobby may increase one’s sense of self-worth and self-confidence.

During the course of a lawsuit, it is easy to become isolated or to self-medicate with drugs or alcohol. Avoid the temptation to do so. A substance abuse problem only makes dealing with the litigation process worse. It may be helpful to speak to a trusted colleague or friend in a general way about the claim and its effects. You may learn that your colleague also has been involved in a lawsuit and is willing to discuss the experience with you. However, be careful not to discuss the clinical facts of the case, or open up about your doubts and seek reassurance. During the discovery phase, you could be required to divulge all persons with whom you have discussed the case and your colleague may be required to testify about the doubts you divulged. Any such discussion held with colleagues in the presence of your attorney, on the other hand, cloaks what is said in the attorney-client privilege and protects it from discovery by the plaintiff’s counsel.

Conclusion

It is very likely you will have at least one lawsuit filed against you during your career. Remember to maintain a sense of perspective about the litigation process and realize that there are positive ways to cope with the malpractice stress syndrome. The guiding word when going through this crisis is Equanimity.

Notes:

1. Reading Reverend EG. The Malpractice Stress Syndrome. Maryland Medical Journal. March 1987:207.
2. Charles SC, et al. Physicians’ Self-Reports of Reactions to Malpractice Litigation. The American Journal of Psychiatry. 1984;141:563-565. [This study indicates that 96% of doctors experience some emotional reaction after being sued.]
3. Reisman NR and Gonzalez SM. How to Channel Your Anger into Winning Your Claim. Ophthalmic Risk Management Digest. 1992;2(4):3-5,8.

How to Survive a Malpractice Lawsuit and Emerge Stronger

 By Gerhard W. Cibis, MD

Digest, Fall, 1993

No amount of risk management articles or seminars can prepare a physician for the emotional devastation of being sued. It is possible, however, to emerge from the experience emotionally and personally stronger, with greater equanimity for one’s self, one’s work and one’s patients.

I have been sued twice. In my opinion, both cases were medical no-win situations. The first case involved loss of residual vision in the remaining glaucomatous rubella eye following multiple surgeries performed elsewhere. The second case involved ptosis and amblyopia after an orbital biopsy of suspected rhabdomyosarcoma.

Both cases were tried and rendered defense verdicts. The second case was successfully appealed by the plaintiff and retried. Again, the court ruled in my favor. The defense verdict was appealed again, but this time it was upheld. After nine years of being on this emotional roller coaster, the case is finally behind me.

I think the reason physicians find being sued so devastating lies in the fundamentally different approaches of medicine and law. Physicians learn through books, lectures and clinical observation, then practice under supervision and expect criticisms for their “mistakes.” Mortality morbidity conferences, teaching rounds, peer reviews all are designed to criticize and challenge a physician’s clinical decision making. A good physician listens, learns, interprets, adapts and improves.

Therefore, when a letter comes from a plaintiff’s attorney stating that an “expert” has reviewed the records and finds fault, the conscientious physician immediately assumes there is validity to the charge and second guesses how he or she could have done better and how the bad result, without which there is rarely a suit, could have been avoided. It is the medical version of the “Monday morning quarterback.”

What the physician fails to realize is that attorneys are advocates for their clients. Their goal is to affirm the law in the best interest of their client. Truth, which for doctors means the best clinical result possible given the circumstances, is nearly immaterial to the lawyer who seeks to apply the law favorably to his or her client. The emotional appeal and monetary potential of a case is as important as the medical facts in any decision to litigate. This is the basis of our advocacy system.

Prepare for a Long Battle

When a malpractice notice arrives, prepare yourself mentally for a long battle. This is a marathon. Do not peak too early. Do not expect to settle the case in deposition or by calling the plaintiff’s attorney to explain your side. Do not delude yourself into thinking that the plaintiff will be unable to find experts to testify against you. In the case against me involving the child with ptosis and amblyopia, the plaintiff found three experts, all of whom disagreed as to the reason for my “malpractice.”

Remember plaintiff’s attorneys are not looking for the truth. They are looking for the law as it best serves their client. They may appear sympathetic to you one moment and play hardball the next, depending on which tactic they think will work. What you tell the plaintiff’s attorney will direct his or her concept of the “theory” of the case. The more you talk the more likely it is that the plaintiff’s attorney will stumble onto something not previously considered from which to develop another theory. Therefore do not volunteer extraneous information. Answer the questions asked and do not be evasive, but do not elaborate.

It is important to keep your family involved and informed. As with any adversity or joy, these are the people most important to you. But while talking about your general feelings to family, friends and colleagues is cathartic, avoid discussing details of the case with others, especially health care providers who could be subpoenaed to testify against you.

On the other hand, your own attorney needs access to your unrestricted fears, opinions and medical knowledge. Treat this as a doctor-patient relationship with you as the patient. Go over the facts of the case, especially the medical records, again and again. Each time you do new angles and facets will appear. Do not begrudge the time you spend with your defense attorney. Do not cancel or cut short meetings with your attorney. Thoroughness in preparation comes to the fore during the deposition and especially during the trial. Only through repeated reworkings will you have discussed and considered enough alternatives to see the ramifications of any question and have developed the skill to deal with it, avoiding the intended traps.

Attend All Depositions

Attend all depositions, especially those of the plaintiff’s experts. It toughens you mentally to hear their criticism and recognize its weaknesses and strengths. I found that the facts of the case often were twisted in unbelievable ways. Hearing my opponents’ depositions enabled me to anticipate their theory of the case and develop an effective rebuttal. I also used these opportunities to help explain medical facts to my attorney.

You may find, as I did, that by familiarizing yourself with the office environment, personality and reasoning of your opponent experts, you will be less emotional at your own deposition and in court. Most important, however, your presence at the depositions of the plaintiff’s experts, especially when held in their offices, helps blunt their attack. Just as you feel strange in their presence, they are affected by your presence.

Maintain Faith in Yourself

Maintain faith in yourself throughout this long process. Even if respected peers tell you they would have acted differently, they were not there and did not have to weigh all the factors at the time. You did. When you find some area where you yourself agree you could have acted differently, recall why you did not. You had sound reasoning at the time. Analyze it and with the help of your attorney or your expert witnesses, muster your best arguments to support your course of action. Just because someone disagrees with the course you took does not mean you are guilty of malpractice. In court it becomes malpractice only if the jury believes the plaintiff over you.

Understand that by conveying intelligent concern, thoughtfulness, empathy and a sympathetic personality, you can persuade the jury to side with you. Realize that the jury wants to like you. They want to believe you are a good doctor. Make them wish you were their doctor if they found themselves in a situation similar to the plaintiff’s. To do this you need to convey the same confidence you originally had in yourself and in your treatment of the patient. Do not let subsequent events cloud your judgment.