How to Survive a Medical Malpractice Lawsuit

Everyone seeks to avoid getting into a lawsuit, but what do you do if this does happen?

Getting sued for medical malpractice is one of the most traumatic events of a physician's career.

This text will guide doctors and physicians through the process from the moment they receive a summons until the after-trial appeal process.

• Containing valuable information that physicians need to know to prevent making critical mistakes that can hurt their case
• With strategies explained to maximize their chances of a defendant's verdict.
• Including vital information on how to change your attorney, act at the deposition and dress for court,

Navigating through what is a mysterious and terrifying process in non-legalese language that is easy to understand including what makes patients angry, strategies for coping, sample questions and tips on answering them to what happens in court and how to continue if there is a bad outcome.

Acknowledgments viii

Foreword ix

Introduction xi

Section 1: The long road to trial 1

1 You’ve been served! Now what? 3

Questions to ask your insurer about your policy 3

What are the options if your employer purchases your insurance policy and dictates the terms? 6

When and how to report a claim 7

A few pitfalls to avoid after you’ve been sued 8

2 What is medical malpractice? 13

The criteria of physician legally defined malpractice 14

EMTALA issues 18

Complaints to the medical board 19

Alternative Dispute Resolution (ADR) 20

3 How to choose an attorney 23

Questions to ask your attorney 23

Conflicts of Interest 25

Problems with the Hospital as co-defendant 26

How do you change your attorney? 28

4 Coping with a medical malpractice lawsuit 31

Kübler-Ross five stages of grief 32

Maslow five stages of needs 36

Strategies for coping 39

v

vi Contents

5 Before the deposition 40

Differences between federal and state court 41

Addressing the complaint 42

The discovery phase begins 43

Meeting with your attorney 43

The in-house physician review 44

6 Nail the deposition 46

Preparing for the deposition 47

Dealing with co-defendant issues 47

General deposition rules and tips 50

Sample question and answer scenarios 53

7 All about experts 62

Expert qualifications 63

Daubert rules regarding medical expert testimony 64

The defense expert 66

The plaintiff’s expert 67

Using the plaintiff’s expert to help your case 69

What if their expert is lying? 70

8 Pretrial countdown 72

Reviewing your deposition 72

Motions to dismiss the case 73

Should you settle your case? 75

Preparing for trial 77

9 The trial 79

Rules to follow when in court e.g. How you should dress 80

Jury selection 81

The cross-examination with tips and question and answer scenarios 84

Jury Deliberation 94

Damages 95

10 What to do if you lose 97

What are the steps to getting an appeal? 97

Can you get your attorney to file an appeal? 98

Settling in lieu of an appeal 99

Section 2: An ounce of prevention 101

11 Why doctors get sued 103

Bad outcome 103

Should you apologize? 104

What makes patients angry? 105

Methods to prevent patients from becoming angry 105

12 Communication Issues 112

Effective communication 112

Foreign language issues 113

Informed consent 114

13 Good documentation makes a difference 116

Documentation of Informed Consent 117

Destroy your diary or patient log before you get sued 118

Be aware of your electronic footprint 119

14 Liability risk with the use of physician extenders 122

Vicarious Liability 123

How should you run your practice? 125

15 Hospital issues 127

Peer Review 127

Hospital Privileges 128

Risk Management: Does it help you? 129

The Against Medical Advice (A.M.A.) form 130

Suspension of privileges 132

16 Summary 133

Appendix A Expert qualification requirements vary by state 137

Appendix B Arbitration mediation and pretrial screening panels 141

Appendix C Collateral source reform 145

Appendix D I’m Sorry Laws 148

Glossary 150

Index 157

" This excellent and thorough book on malpractice should be on every practicing physician's bookshelves." (Doody's, 2 March 2012)

Ilene R. Brenner, MD, Adjunct Professor, Emory University, Atlanta, GA, USA Getting sued for medical malpractice is one of the most traumatic events of a physician's career.

This book will guide physicians through the process, from the moment they receive a summons until the after-trial appeal process;

Author Ilene R. Brenner, M.D. arms the reader with strategies to maximize their chances of a defendant's verdict.

How To Survive a Medical Malpractice Lawsuit:

• Contains valuable information that health care providers need to know to prevent making critical mistakes that can hurt their case.
• Includes guidance on vital topics such as conflicts of interest, decisions to settle, how to change your attorney, and optimizing your deposition and cross-examination performance.
• Provides critical material to help prevent a lawsuit, how to cope with the emotional strain, with many sample deposition and cross examination questions and tips on answering them, plus detailed descriptions on the in-court process such as when to show up for court, how a jury is picked, and how to dress appropriately

Navigate through what is a mysterious and terrifying process with a medical malpractice survival book written by a doctor for doctors in non-legalese language that is easy to understand.