While neurosurgeons can expect to enjoy a challenging and rewarding career, they also can expect to be sued. Most residents have little experience in legal matters, which can make the process of a lawsuit confusing and time-consuming. Knowledge of the anatomy of a medical malpractice suit as well as how to prepare for depositions and testimony can help relieve the stress surrounding a lawsuit and help you defend yourself.
There are four elements that a medical malpractice lawsuit must address: (1) duty, (2) breach, (3) causation, and (4) damages. A lawsuit can only proceed if all elements are satisfied. The only exception to this is the legal doctrine of res ipsi loquitur (the thing speaks for itself), which applies to errors in which the negligence is obvious.
The first element is duty, which is the existence of a doctor-patient relationship. Usually not a matter of dispute, it has been an issue in cases that involve an informal consultation on the street or over the phone.
The second element is that of a breach in the standard of care, which has a very different meaning to lawyers than you might think. Doctors like to think of the standard of care as some sort of treatment ideal, a “standard” that when met provides an irreproachable bulwark against accusations of malpractice. In contrast, for a lawyer a Platonic “standard of care” does not exist. The standard of care is established in each case by the use of paid “experts,” which both sides will employ to assert that the standard of care has or has not been met.
The third and fourth elements are causation and damages, which of all the elements are usually the most hotly contested. The plaintiff must show that the alleged breach in care actually caused damage, which can often be difficult to prove. Damages are classified into economic and noneconomic. Economic damages represent lost wages and expenses of care. Among noneconomic damages are pain and suffering and loss of consortium.
Once the decision to file a lawsuit has been made, the plaintiff’s lawyer sends a notice letter to the physician announcing the intent to file suit. At this point, the hospital’s risk management department will contact you at and arrange for legal representation.
The next step is the discovery phase, during which information is exchanged between the two parties such as expert witness reports, list of potential witnesses, reports of other treating physicians, and other relevant documents pertaining to the case. Your involvement at this stage will be in the answering of interrogatories, which are written questions from the opposing lawyer, and depositions, which are oral question and answer sessions with the opposing lawyer.
You may be deposed either as a named defendant or as a witness of fact. Either way, the opposing lawyer will often try to lead you into criticizing someone else’s actions. Unfortunately, residents, by nature of their job, often feel a pressure to have all the answers, which can lead to needlessly answering questions that, in a lawsuit, need not and should not be answered. Keep in mind you are not being deposed as an expert witness, and avoid these types of questions by saying something like, “It would not be appropriate to comment since I am not an expert.”
During a deposition, do not answer a question about a particular document without having a copy of the document in front of you. Make sure questions are phrased correctly in medical terminology, and answer only the specific question you were asked. Do not guess or presume anything you don’t know from first-hand knowledge, and do not speculate about what someone else may have been thinking. Your only obligation is to answer the exact question asked of you truthfully, based on your own personal knowledge, not what you think you know, should know, or what might have happened. “I don’t know” and “I do not remember” are perfectly acceptable answers. Above all, keep your answers as short as possible; “yes” or “no” is best.
Most malpractice suits are settled, but if the case goes to trial it may not start until many years after the lawsuit is filed. When giving testimony at trial, be polite, sincere, and likeable.
Being named in a lawsuit is now nearly unavoidable. To protect yourself emotionally, it is helpful to appreciate that a malpractice suit rarely has anything to do with medical error, and that multiple studies have shown no correlation between negligence and litigation. Ultimately what is best for the patient—appropriate medical care accurately documented and a healthy, trusting doctor-patient relationship—is also your best defense against a malpractice lawsuit.
K. Michael Webb, MD, is a neurosurgeon with Neurosurgical Associates PSC in Lexington, Ky. Gregory P. Lekovic, MD, JD, contributed to this article.