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AANS Neurosurgeon | Volume 26, Number 4, 2017

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Surviving a Malpractice Lawsuit

The summons comes as a shock. The opening salvo thunders that, “The acts of the Defendant were intentional, reckless, willful, wanton, grossly negligent, malicious, oppressive, outrageous, unreasonable, unfair, fraudulent, in bad faith and flagrantly indifferent with malicious disregard for the rights and safety of the patient.” It concludes that, “The Plaintiff has been damaged and caused to suffer severe, painful, disabling and permanent injuries, mental anguish, permanent and total disability and past and future medical expenses.”

Particularly if this is a first malpractice claim, the defendant’s reaction is a swirling mixture of disbelief, anger, fear and denial. The summons is designed to inflict emotional upheaval and set the recipient at a strategic disadvantage in the mental chess game to follow. This cloud will hover for months, or possibly years, and intrude frequently and irrepressibly into the defending neurosurgeon’s daily reverie. The only useful response is not rage or denial, but calm acceptance and preparation.

There are three types of preparation to defend a malpractice lawsuit:

  • Factual
  • Strategic
  • Psychological

Factual preparation involves studying all the records in order to know more about the case than anyone in the room. Strategic preparation includes understanding what to say, what not to say (particularly what not to volunteer) and when to say it. Psychological preparation necessitates getting your mind right. If fear or self-doubt cloud your thinking, you have defeated yourself and handed victory to the opposition before the contest begins.

At all times, remember that medical malpractice is based on a theory of negligence and, in medical malpractice, negligence is defined as a violation of the standard of care: what a reasonable neurosurgeon would do in the same or similar circumstances. There are three key elements, all of which must be fulfilled by the plaintiff to prove malpractice:

  • A negligent act or omission;
  • Injury; and
  • Causation – proof that the act or omission caused the injury.

Proof of two other elements is also necessary: a duty to treat and compensable damage from the injury. Without all these elements proven in evidence, the plaintiff cannot win.

A defense expert must be chosen. This expert should have solid professional credentials, but, even more importantly, should be adept at public persuasion and firm under the stress of cross-examination.


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The first test of wills will be the discovery deposition. The plaintiff’s purpose in discovery is to learn the defendant’s argument and version of the facts, find weaknesses to exploit, eliminate any surprises, refine the plaintiff’s argument and record sworn testimony that might be later used to discredit and impeach the testimony of the defendant. The defendant should answer each question truthfully, but offer no more than is asked. Volunteering information cannot help the defense, and opens new avenues of potential liability to explore. Some questions are clear and can be answered directly, some can be answered only after clarifying the question and some cannot be answered at all, having not the memory or record to answer. “I don’t know” is sometimes the best response and, if truthful, is not evasion. Remember:

  • Do not agree to misleading statements.
  • Brevity is your ally.
  • Stick to the facts and don’t speculate to fill in memory blanks.
  • Admit no negligence.
  • Tell only the truth.
  • Do not serve as a witness against yourself.
  • Pause and think before answering.
  • Remain calm; anger leads to self-inflicted damage.

The final test of wills comes at trial, when it is wise to remember:

“Most medical malpractice trials have little to do with science, truth, fairness or civil discourse. It is theater, pure and simple, and the best actors walk off the stage with the award.” 1

At trial, the defendant must arduously prepare just as for the discovery deposition. There is one difference, however: the jury is present. Talk to the jury. They decide the outcome. This is the opportunity to personally tell the story as you saw and experienced it, to give your version of the facts and their meaning. Just as when conversing with a patient in an examining room, avoid medical jargon, explain technical information in simple terms, hold attention and gain trust. Share the dilemmas and uncertainties you faced and let the jury see the case through your eyes. Remember, perfection is not expected; caring and competence are.

The conclusion of a malpractice trial is most commonly a defense verdict. However, it can be lost. Questions to confront in considering settlement are:

  • Is the case defensible?
  • What have you not revealed?
  • How good a witness are you?
  • Do the records support your case?
  • Is an excess verdict likely?2

Settlement is not necessarily an admission of guilt or a moral defeat, it is a calculus of cost and potential loss, prompted by exorbitant demands, threat of punitive damages, the character of the typical local jury and the strength of the defense case.

Always remember, you are not alone. Statistics show most neurosurgeons and other physicians will be sued. That does not mean you are a bad doctor, or a bad person.

References

1. O’Brien, C. Former counsel for The Doctor’s Company and a principal author of California’s 1975 malpractice reform legislation, MICRA (Medical Injury Compensation Reform Act)

2. Weiss, Gail G. (2007) Malpractice: to settle or fight. Medical Economics, Neurology Edition 84 (15), 62-3; 67-8.

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