Medical Malpractice and Long-Term Care: Part I: Litigation
This is part I of a two-part article. Part II will address risk management strategies you can adopt now to reduce your risk of being sued as part of a medical malpractice case.
Medical Malpractice
Litigation claiming malpractice may be directed at LTC facilities and the practitioners who work in them.1-3 There are four criteria that must be met for malpractice litigation to have merit:
1. Did the named individual or institution have an established duty or obligation to perform a particular service or provide care to an individual?
2. Was there a breach of this duty that fell below the applicable standard of care?
3. Was there an injury to the individual that occurred?
4. Was there a proximate cause that links the breach of this duty directly to the injury being alleged by the plaintiff?
Patients or their families deserve compensation in cases where there has been a clear deviation from the widely accepted standard of care, and a resulting adverse outcome has resulted in death, injury, or disability. There are, however, serious consequences for all involved—including patients—when healthcare providers alter their practice habits, not on the basis of what they believe to be the right course of action, but based on their fear of subsequent litigation.
The American Medical Directors Association (AMDA) has published the results of a survey of its members and their concerns regarding malpractice litigation. Twenty-nine percent of respondents said that they had encountered problems in obtaining or renewing medical liability insurance; 39% of respondents had modified their practices due to liability pressures or concerns; 56% of those who had modified their practices had limited their work as a medical director; and 28% had stopped working as a medical director altogether.4 AMDA found that more than 433 nursing home medical directors had to stop working in facilities because they had lost their liability coverage. Most physicians, nurse practitioners, physician assistants, and nurses have not been sued as part of a medical malpractice action. It is a frightening and unfamiliar experience. This article describes the typical course of a medical malpractice case, and seeks to give advice on how to approach the required elements inherent to a typical case.
Legal Principles
The Standard of Care
The plaintiff’s attorney will seek to establish that there has been a deviation from the standard of medical care expected of the facility and/or practitioner that is being sued, and that this breech of the standard has resulted in harm. To most physicians, the term standard of care connotes an action or treatment that would be expected by a consensus of the medical community in a given situation, or how a physician’s colleagues would act in a certain circumstance. Black’s Law Dictionary defines standard of care as “that degree of care which a reasonably prudent person should exercise under same or similar circumstances.”5 Expert witnesses will be retained by both the plaintiff and the defendant to establish that a medical standard was or was not breeched. Both sides may refer to the medical literature and/or clinical guidelines to support their case. The successful prosecution and defense of a medical malpractice suit will often hinge on whether a deviation from the standard of care can be established.
Preponderance of Evidence
Medical malpractice cases are processed by a civil court and are not criminal cases. The judge will determine or advise the jury to determine the outcome of the case based on the standard of the preponderance of the evidence. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial.6
A Typical Malpractice Case
The course of a malpractice case can be broken down into several stages:7,8
● Investigation
● Filing a suit/notification
● Pretrial discovery: - written discovery - deposition of witnesses - deposition of expert witnesses
● Negotiations and settlement
● Trial preparation and trial
Investigation
An investigation occurs when a patient or a patient’s legal guardian, now called the plaintiff, seeks legal advice regarding what they feel to be an occurrence of medical malpractice. The plaintiff attorney will assess the validity of the case and make a judgment as to whether the case warrants further attention. The attorney may request copies of medical records. What constitutes merit from the plaintiff attorney’s perspective may vary from attorney to attorney. Most plaintiff attorneys are paid only in the event of a successful claim. Experienced attorneys will only pursue a case if they believe they can win, or can achieve a financial settlement of the case.
Notification
Assuming that the plaintiff attorney sees merit in the case, he or she will file a Complaint with the court. The practitioner or facility will then be served a legal Summons by the court, which will state the nature of the allegations. This may be the practitioner’s first knowledge of being sued. Contact your professional liability insurance company representative as soon as you receive a summons or complaint. A default judgment can be entered against you if there is not a proper and timely response filed on your behalf by your defense attorney. Do not answer the Complaint on your own. Do not contact either the plaintiff directly or his/her attorney. Confine your discussions about your lawsuit.
There is a natural inclination to want to discuss your lawsuit with colleagues, family members, or friends. Reviewing a course of treatment with a colleague may result in an individual being called as a witness in your trial, or conversely, preclude the defense from calling that individual as a witness. Discussions with anyone other than your attorney can be discoverable, and subsequently used against you. Establish a written policy for responding to a process server who enters your office, and determine what steps to follow if any legal documents are found on the premises or are received by mail, fax, etc. This policy should be reviewed with office staff during orientation and regularly thereafter. Be honest and candid with your defense attorney and claims representative. Attempts to conceal information, even if you think it is unfavorable to your case, seldom remain unexposed. Dishonesty can make a case indefensible. Honesty and candidness allow your defense attorney to review the facts in their entirety and prepare a defense.
Pretrial Discovery
Written discovery. A great deal of information is reviewed and created by many different people during the course of a medical malpractice case. The practitioner may be confused and unsure about who is working for whom. There may be several different parties named in the lawsuit, each represented by their own legal counsel. You should know whom each of the attorneys in the case represents. You should know which records to review and what, if any, notes you should take in the course of that review. Be careful about the notes you make. These may be discoverable, and you may need to provide them to the plaintiff attorney later in the course of the case. Be careful about the research you do yourself. Any review of the medical literature you conduct may also be discoverable. Be careful about putting tabs on the files or underlining or highlighting any of the records or depositions you have been provided. You may be asked later why you have done this. Never alter the records. This is a criminal offense that may result in a separate criminal investigation, resulting in defense costs and fines that will not be covered by your medical malpractice insurance.
Deposition of witnesses. You will very probably be deposed in the course of the malpractice case. This is a process where you will be asked questions under oath. Most commonly, the plaintiff attorney will depose you. This is also an opportunity for your defense attorney to ask you questions under oath. Attorneys representing other parties may also be present and may also ask you questions. The deposition usually takes place in one of the attorneys’ offices. A stenographer is usually present, but in some circumstances video testimony may be obtained. Plaintiffs, defendants, and expert witnesses may all be asked to give a deposition. Before the deposition, review the records in detail. Organize the records so that they are in chronological order. You should meet with your defense attorney before the deposition. Discussions that you have with your attorney are protected by attorney-client privilege and are not discoverable. You do not have to answer questions regarding the content of these discussions. How you conduct yourself and how you answer questions posed to you in the course of the deposition are key to the success of your defense (Table).
Deposition of expert witnesses. Both sides will generally retain the services of expert witnesses. An expert witness is usually a practitioner in the same specialty as the practitioner who is being sued. There is no legal definition of what constitutes an “expert,” but both sides will seek well-qualified practitioners whose opinions they feel will be respected. They are called upon to give opinions on the care delivered and, especially, to defend or refute the assertion that there was a deviation from the widely accepted standard of care. Expert witnesses will declare their opinions and may be deposed. Your defense attorney will go to the expert witnesses’ deposition; you will not. You should make no attempt to contact any of the plaintiff’s expert witnesses.
Negotiations and Settlement
Your defense attorney or the plaintiff attorney may seek a negotiated settlement of the case before it reaches a trial. This is a difficult and emotive phase of the case. The practitioner may be advised or encouraged to agree to a settlement when he or she is convinced that they have done nothing wrong. You should know the extent of your malpractice coverage, and be sure that the amount being negotiated will be covered. You should be aware of the implications of an injury settlement on your future malpractice coverage, your medical privileges, and your participation in medical insurance plans. You should discuss with your current malpractice insurance company its approach to requests for settlements. These cases are expensive to defend, and your carrier may seek to settle to reduce the ultimate costs to them.
Trial Preparation and Trial
Most medical malpractice cases do not proceed to trial, but many do. Cases can take years to unfold, and the trial may take place three to four years after the alleged malpractice. The trial may take place many months after your deposition. You will need to review the medical records again in preparation for the trial. You should review all of the depositions—especially the disclosure statements regarding the opinions of expert witnesses. Prepare for your testimony with your defense lawyer. An inaccurate or unfortunate statement may do irreparable harm to a case. Plan to be in court every day. This may be a burden on you, your practice, and your family, but your presence can do nothing but help your case. The impression a witness makes will have an impact on the jury. Be confident; don’t be brusque, petulant, or surly. Don’t wear a white coat. Be well dressed.
Conclusion
Being named in a malpractice lawsuit is disturbing, frightening, emotionally exhausting, and time-consuming. Book yourself time to participate in your own defense. Communicate with your defense team on a regular basis. Remember that everyone makes mistakes, and that being named in a malpractice lawsuit does not in and of itself make you a bad doctor. You may have been falsely accused, and with your defense counsel’s advice you may settle the case with the knowledge that you did nothing wrong. You bought malpractice coverage to help you fight for and receive a fair judgment. We all practice medicine knowing that we could be embroiled in such a legal action.
The author reports no relevant financial interests.
