Article

A defendant’s manifesto: Forewarned is forearmed

Our anonymous author, sued for malpractice, shares what she learned, between papers served and trial won.

About two years into my career after fellowship, I received disturbing news: I was named as a co-defendant in a lawsuit dating back to my training. My fellowship mentor was being sued as well. I did not operate on this patient, who sued due to a surgical complication, but I examined him with my boss and my name was on the chart.

The lawsuit was completely absurd and without merit. Ten years later, and after my month in court, the jury agreed with me. But, I paid a hefty price in terms of the stress it caused. That said, I learned some truths along the way.

Here are those truths. Were they self-evident? You be the judge.

OMIC HAS DEFENDED YOUNG OPHTHALMOLOGISTS (YOs) IN JURY TRIALS (1987-2014)
In 4 cases, the jury found for the plaintiff
Indemnity Payment Claim Description YO’s Age (Gender)
$675,550 Complications following retinal detachment 35 (M)
$430,000 Fire in OR during ptosis surgery 35 (M)
$283,815 Negligent LASIK surgery 34 (M)
$205,000 Negligent orbital surgery 34 (M)
In 10 cases, the jury found for the defense
Claim Description YO’s Age (Gender)
Allegedly negligent blepharoplasty surgery 31 (M)
YAG laser capsulotomy caused burn 34 (F)
Failure to diagnose retinal detachment post cataract surgery 35 (M)
Endophthalmitis post-cataract surgery 35 (M)
Retained foreign body after cataract surgery 26 (M)
Allegedly negligent cataract surgery 31 (M)
Allegedly negligent cataract surgery 32 (M)
Allegedly negligent cataract surgery 33 (M)
Allegedly negligent cataract surgery 35 (M)
Allegedly negligent cataract surgery 35 (M)

1. MALPRACTICE SUITS ARE LENGTHY.

These cases move slowly, particularly if you don’t settle. Although mine lasted a decade, most cases may take “only” a few years; regardless, they typically do not resolve quickly. While the plaintiff may want to win and get the pot of gold, he may try to force a settlement by dragging things out. Also, your defense attorney may not have the incentive to move things too quickly, as he is paid by the hour — a good lawyer will want to win and move on, regardless of the time and pay.

2. THE JURY WON’T GET THE WHOLE STORY.

One of the most upsetting things to a physician who has likely engaged in countless acts of volunteerism, academic pursuits and other worthy endeavors is to learn that the jury will be deprived of most of this information and will be explicitly told by the judge not to look you up or “Google” you. Similarly, if someone sues you with an extensive history that attracted the attention of law enforcement, the jury will not learn about that either. The case is decided exclusively on the medical treatment details.

3. THE DEPOSITION IS BASICALLY EVERYTHING.

Although the case may last a decade, the deposition will likely come fairly early in the process. At that time, you may not know exactly why you are being sued or the exact allegations of malpractice. In fact, it is possible that the plaintiff will change these allegations as the case progresses.

In any case, the deposition is the foundation for everything to come. Generally speaking, you gain nothing from giving a perfect deposition, but a deposition can come back to hurt you in many ways. The plaintiff will pour over your deposition and look for small inconsistencies or any information that can help the case against you.

So prepare for the deposition. Understand every detail of the case so that, when the trick questions start coming, you know how to answer honestly and accurately.

4. YOU CAN’T RELY ON STUDIES.

Even though you use published literature to make medical decisions every day, you probably won’t be allowed to use these studies in court. This information is only allowed if both your medical expert and the plaintiff’s medical expert agree that the publication is a landmark study or represents the standard of care. If a publication or study helps defend your medical management, it is unlikely that a plaintiff’s medical expert will allow that information inside the courtroom. The peer-reviewed literature has a place in the doctor’s office but not in the court of law.

5. BIAS

One thing I didn’t see coming: the judge in my case did not seem impartial. I heard that the judge who presided over my case was “a plaintiff’s judge,” but that still didn't prepare me for what was to come. The judge overruled every objection from my lawyer and sustained every objection from the plaintiff’s attorney. I am confident that this helped me, because the jury saw what was going on. But, we never got the chance to make some really critical points. This easily could have hurt my case.

6. THE JURY’S PERCEPTIONS MATTER.

On the flip side, I think the jury was inclined to like me. Maybe it’s because people usually have a good impression of doctors. I’ll never know for sure, but I think that my jury felt that I treated the patient well because they heard that I gave the patient my cell phone number and email.

7. THE PLAINTIFF NEVER RESTS.

If you defeat the plaintiff’s claims regarding malpractice in court, don’t be surprised if he comes up with claims that are brand new. Over the month-long period of my trial, a pattern developed. I took the stand every day to defeat a claim of a departure from the standard of care, and the plaintiff’s lawyer returned with a new claim the next morning. This pattern was so significant that my lawyer warned the jury that the plaintiff’s attorney would likely try to bring up new evidence in the closing statements — something that should never be done.

8. YOUR CHOICE OF LAWYER IS CRITICAL.

Some lawyers are better than others and have more experience in ophthalmology than others, and this makes a difference. In most cases, you can pick your lawyer or request a change if you feel that you need to. If you are sued, you can benefit from networking and talking with older colleagues who may have experienced a malpractice suit.

As I previously mentioned, lawyers are typically paid by the hour. You could imagine that the lawyer who has very little business might behave like a taxi driver on a slow evening — take the long route and try to get as many hours in as possible while ultimately still bringing you to your destination. An experienced and in-demand, popular defense attorney will behave like a taxi driver on New Year’s Eve — move as quickly as possible to get the next job to get through as many cases as possible.

9. STRESS IS NORMAL.

A lawsuit is one of the most stressful things a physician will face. This is well documented, and I found it to be perfectly true. Despite being convinced of my innocence, every allegation hurt deeply. I lost countless nights of sleep and wasn’t myself again until the trial was over. Feeling horrible about the experience is normal.

10. YOU WILL FEEL BETTER WHEN IT’S OVER — AND YOU MAY MISS IT.

When I won my malpractice suit, I was happy, but I actually missed the process. I played an active role in my trial’s defense, and by the end of the trial I admit that I came to crave the gamesmanship. It helped that we shot down each of the plaintiff’s absurd and baseless accusations.

Today, however, I rarely think about the trial. I have moved on.

CONCLUSION

Here is my final tip: don’t change a single thing about how you care for your patients. I don’t practice defensive medicine; I simply do my best and practice good medicine. That is all you need to win a lawsuit, anyway. OM