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A Malpractice Episode: A Sequence of Events

Ritter, Merrill, A.; Ritter, Nanette, N.

Clinical Orthopaedics and Related Research: February 2003 - Volume 407 - Issue - p 25-27
SECTION I SYMPOSIUM: RISK MANAGEMENT
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A malpractice suit is an event that no orthopaedic surgeon wants to go through; however, reality says you will. The authors outlined a step by step approach to your needs during such a suit and offer possible helpful actions by recommending collecting and securing all of the written documentation, being able to familiarize yourself with the entire events without notes, constant appraisal and discussion of the events with your attorney, considerations for settling, and finally emotional events surrounding the trial. The initial shock and insult eventually will subside, your patients will not note the difference, but you never will forget the event.

From the Center for Hip and Knee Surgery, St. Francis Hospital, Mooresville, Mooresville, IN.

Reprint requests to Merrill A. Ritter, MD, 1199 Hadley Road, Mooresville, In 46158. Phone: 317–831-2273; Fax: 317–831-9347; E-mail: Marittermd@yahoo.com.

DOI: 10.1097/01.blo.0000049704.69467.f8

Imagine yourself in a small town courtroom awaiting the jury to return its verdict of your guilt or innocence for causing your patient pain and suffering. An article never can convey the severity of the emotional roller coaster ride before, during, and after a jury trial. One must have been through such an experience to understand it. Attorneys see this as a part of their work whereas it is the biggest downer in your life. Is it worth the fight? Only if you are absolutely sure you are right. Then, you still may lose the fight, your emotional stability, your friends and family, and your confidence in your professional ability. This is your worst nightmare. To understand what happens the authors offer some constructive help about the entire process.

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Notice of Lawsuit

There is initial shock, insult, hurt, the concern about being afraid of the effect of this on your career and your family, and then anger. However, this has to pass. You must notify your insurance company immediately. Hopefully, you have had some inkling of the problem before the actual letter arrives and have related as much to the insurance company.

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Preparation

You must obtain all of your records, any other records of this particular event, and secure the records so that they will not be lost. Make sure they are not tampered with or altered. Read all the records thoroughly, including nurses’ notes, therapists’ notes, and all notes, letters, and prescriptions in the charts because the plaintiff’s attorney and your attorney also will become familiar with them. These events, dates, and times, should be detailed so that you totally understand the sequence of what happened. Do this right away; it helps you to understand the suit and what may have gone wrong. Do not write anything down that will give the opposing attorney insight as to your feelings or the direction of your thoughts. Those notes are information the plaintiff’s attorney can have and they only will help him or her in the case against you.

Review all of this information with your attorney in person; never correspond by letter unless he or she so desires and at all times think honestly and do not avoid reality.

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Interrogatories

Interrogatories are questions that the plaintiff’s attorney desires about the suit. Answer all questions to your attorney and then let him or her phrase it the way it should be. Make sure your answers are very succinct. Do not write anything that you are not absolutely comfortable with and you must keep an honest appraisal of your situation.

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Deposition

Depositions by the plaintiff’s attorney of yourself basically are missions digging for facts, angles, and your reactions to certain situations. The plaintiff’s attorney is trying to find other particular problems in your lawsuit so be prepared for the worst. Always have a predeposition conference with your attorney to gain insight into the proceedings. Bring only the information that the plaintiff’s attorney has requested. Do not bring any notes or simulators to offer anything that he or she can use. Be prepared to be insulted, interrogated, and verbally abused.

Know all your facts and dates without notes. Answer the questions with very short responses and do not educate the attorney because he or she knows more than you think. If you quote any article, be exact and remember no article is authoritative nor is any book absolute. Keep calm at all times; do not get angry no matter how aggressive the other attorney is acting. Remember, you are no longer in your environment but theirs.

You may go to all of the depositions that your attorney and the plaintiff’s attorney are obtaining from expert witnesses and the plaintiff, but only go to those your attorney thinks would be of any help. Also, the plaintiff’s physician has to state that the particular problem was below the standard of care before the case will go to trial or settlement. If you are present this may make the other physician more aware of his or her words and opinions.

About this time, you have to start being realistic as to whether you need to settle or proceed with the case. Discuss with your attorney not only the problems associated with the suit but where the suit is filed.

If you are possibly wrong, be truthful with yourself and settle the suit. The emotional turmoil is too destructive. If, however, you think you are right and there are no visible clinical or radiographic abnormalities, fight the case. However, be realistic; if there is the slightest abnormality that can be portrayed in the courtroom, reconsider your decision.

If this particular event looks as though it is going to go to trial, acquire the book A Jury of My Peers. 1 This book is very pertinent for anyone who is about to go to a malpractice trial. You have no idea how much this trial will emotionally effect you, your office, your patients, and your family, especially your spouse. This book is about a surgeon’s experience going to trial and it portrays every event you too will experience.

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Trial

Before the trial, go over every event and rehash all of the problems with your attorney. Let your attorney guide you as to how to answer the various questions correctly. Remember you are not in your own environment but in the environment of the attorneys. They know how to phrase the questions better than you. Do it their way. Use props and simulations only if they are helpful and remember that the jurors are lay people, and if you try to be too scientific, it may confuse their attempt to understand totally the complexities of the case.

Finally, the trial is present and you are starting all over again with all of the information that you have obtained to date. You have to rehash the events again not only in your mind, but before the jurors and listen to your attorney as to his or her advice. You will be advised to dress conservatively, and the attendance of your spouse to help support you through this upheaval in your life is essential.

It is very helpful to have a local defense attorney aid with choosing the jury to try to understand the position of the community. If you thought the problems that you had getting this far were bad, the trial is worse; it is worse than anything you have experienced; prepare to be insulted and interrogated for hours.

The jurors are not physicians, therefore, do not try to impress them with your knowledge of medicine. Much of the scientific problems or solutions that you try to present are not understood readily. If there are too many technical problems it is difficult to ask the jurors to comprehend the seriousness of the situation. Having a physician there as an expert witness is more helpful than a taped deposition. Try, at all cost, to have your expert witness present.

Present your information as honestly and succinctly as possible. Do not lie. Try to remember that you are trying to convince the jury and speak to their lifestyle and education. These are the people you need to convince.

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After the Trial

After the verdict is given, especially if it was to the contrary, sleep will be your worst enemy. Sympathy helps, but you have to pull yourself together. Time will definitely heal most of your wounds except for your self-esteem and therefore you need to take time off to let things settle down. Be prepared to read accounts of your trial in the local newspaper and perhaps hear it on radio or television. Hereafter, you will see patients as potential lawsuits no matter what others say.

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Payment

This experience is not over until the bills are paid. If you lost, make sure all receipts are complete and the plaintiff’s attorney has acknowledged the payment.

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Spouse

If you ever have needed your spouse before, this is where you will need him or her the most. Despite what you know about this, you will be so far withdrawn that it definitely will hurt the relationship. I must quote a comment from my wife who kept notes by herself at my trial. “In anticipation of a jury malpractice suit against my husband he is reading the book A Jury of My Peers thoughtfully sent to him by the insurance company. We are trying to understand the emotional talk (being in the court system) this brings to the accused. My husband is trying to educate himself so we can prepare ourselves not to collapse medically, personally, and maritally. Although the case is against my husband it is as surely against me. I cannot separate myself. It is our problem, yet I have no control over its resolution. My question to myself is how to be supportive of him, to keep a reasonable objective approach, to keep our family on an even keel, and to survive this process, get something out of it for our own knowledge to help and build our character."

Remember collect all of the data related to this case, review it carefully, work with your attorney, be succinct in your answers in the depositions, try not to be too technical in the trial, and remember your spouse and family are there for you. Do not leave them out; they love you. If you lose, they will be your primary support.

This is an event that I would not wish on my worst enemy. The emotional drains are worse than you ever will understand unless you go through them yourself. This experience will affect you for the rest of your life. It does not go away especially because you really have no control of the outcome and are not evaluated by a jury or your peers. Despite the fact that at that time you cannot think that your life or your practice will ever come back, it does. Patients and your associates do not worry about it, but you will always remember it.

To the attorney this is a job; to you the physician, this is an enormous attack on your life and honor. Physicians are human, errors do occur, and unfortunately we are not allowed even the smallest deviation, many of which are frivolous. However, one needs to realize the trauma that occurs to the medical profession by a lawsuit.

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References

1. Snider Jr HC: Jury of My Peers. Montgomery, AL, Fountain Press 1989.

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Lawrence D. Dorr, MD—Guest Editor

© 2003 Lippincott Williams & Wilkins, Inc.