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The doctor in the courtroom
The Doctor in the Courtroom Charles H. Beckmann, alpractice suits! Trial lawyers! Judgment awards! There is nothing more unsettling to a physician M than the thought of a lawsuit and the potential for loss of one’s possessions and income. Physicians dread an attack on their abilities, their reputations, and their selfesteem. They worry about the Physicians Data Bank. They view with fear a courtroom appearance. No wonder that physicians avoid learning how to protect themselves in these situations! By studying the subject of malpractice, fear can be dispelled and replaced by knowledge and the ability to better protect oneself. That is the purpose of this discussion. It is important for physicians to realize how and why malpractice suits get started. Once started, the physician needs to know what to do and how to react to prevail against his opponents. He needs to know how to effectively testify. Discussion will follow on these subjects. The most important thing a physician needs to know is that most malpractice suits do not cause him monetary loss at all, even if he is found guilty of malpractice. This is because about 95% of all malpractice cases do not go to trial. Frivolous lawsuits and those without merit are often dropped. This is because trial lawyers may well spend $50,000 on a case before it ever gets into a courtroom. They do not want to utilize their resources on a case with little chance of return on their investment. In a case with no real merit, the defense attorney may ask for a “summary judgment,” which if granted, will dismiss the suit. Of those cases which go on, 95% are settled before trial. This is because the plaintiff lawyer is assured of at least some money, while the defense lawyer has avoided a possibly large jury award. Of the remaining 5% of cases, juries favor the physician in 60% to 80% of verdicts. This means that only 1% to 2% of cases will lead to a loss at trial. In my experience, most verdicts are for monetary amounts within the limits of the physicians malpractice policy. The same is true for settlement amounts. Consequently, only a tiny percent of cases may be for an amount in excess of insurance—no doubt less than 1 case in a 100! On appeal, the award is often decreased to within policy limits. The bottom line is that rarely is a doctor required to pay an award out of his own pocket! In 15 years, I have yet to find a case in which a physician had to pay from his personal resources. Why do patients sue their doctors? A well-known maxim in legal circles “friends don’t sue friends.” My experience has shown me that if the patient likes his physician and respects his ability, he is unlikely to sue From the Skinner Clinic, San Antonio, Texas. Mananuscript received and accepted January 15, 2001. Address for reprints: Charles H. Beckmann, MD, Skinner Clinic, 124 Dallas Street, San Antonio, Texas 78205. ©2001 by Excerpta Medica, Inc. All rights reserved. The American Journal of Cardiology Vol. 87 June 15, 2001
MD
even if an error has been made and the error is well known to the patient. Plaintiff lawyers have affirmed this to me more than once. On the other hand, I recently had a case in which the cardiologist found himself too busy to take the time to explain to the grieving relatives why the patient died. In addition, the cardiologist was described as arrogant, rude, and hurried. The relatives sued even though they weren’t sure malpractice occurred. They merely wanted information. A little time with the relatives would have saved hours of subsequent unpleasantness, not to mention many hours of work time lost. I recently had a case of an uninsured retired patient with severe pneumonia and chronic obstructive lung disease. The patient spent 18 days on a ventilator. The patient nearly died but the pulmonologist saved her life. The bill was enormous. The patient had a decubitus ulcer. The patient sued. Large bills and no insurance may well lead to a lawsuit that would otherwise not have occurred. Another case involved a fireman who developed severe angina while fighting a fire, leading to hospitalization and bypass surgery. He also was uninsured. Workman’s compensation did not cover him because he had angina, not an infarct on the job; therefore, he had no actual injury fighting the fire. Because he needed $28,000 to pay his medical bills, he sued the company having the fire, maintaining that if they had better fire precautions, the fire would not have happened and he would not have required bypass surgery! The doctor prevailed in this groundless claim generated again by large debts and no insurance. In addition to suits arising from bad results, lack of money to pay for medical bills, or hostility to the physician, there are those who sue for money alone. I have been involved in numerous cases in which the patient, with multiple severe diseases, died despite excellent treatment. The relatives sue because they see an opportunity to make a lot of money from a perceived wealthy physician who has insurance. A good plaintiff lawyer will turn down such cases born of desire to “enter the lottery” and make a quick profit. Unfortunately, some overzealous plaintiff expert physicians will convince the trial lawyer to sue in a case with no real merit. It is here that a good defense expert can be of real help clarifying the issues for the jury. Occasionally, I do find a case where genuine malpractice has occurred. A local attorney on television admonishes patients to sue because the doctor has insurance. “That’s why doctors have insurance” she admonishes. She is correct! A corollary of this is that doctors need insurance. Adequate, but not excessive, insurance is a necessary business expense. To “go bare” risks loss of personal savings, whereas a huge insurance limit will actually invite likelihood of a 0002-9149/01/$–see front matter PII S0002-9149(01)01559-4
1389
lawsuit. I can recall defending a nurse and hospital in a case of alleged medication error leading to severe disability. The nurse had a 1 million dollar malpractice policy, which in my opinion, is very high. When the case was settled against the hospital for ⬎10 million dollars, the settlement included the nurses’ million dollar insurance! In my opinion, such a case is almost always against the hospital, the nurse being an employee. However, in this case the nurse was also personally sued because of her large malpractice policy. I firmly believe that she would never have been sued except for her large policy! I once listened to a tape of a trial lawyer lecturing to an audience of physicians. After the lecture he was asked if he would sue a physician who clearly committed malpractice but had few tangible assets and no insurance. He without hesitation said, “of course not.” That response highlighted to me the business nature of malpractice. Trial lawyers are in business to make money. Most of them I have spoken to bear no personal grudge against the physician, but take a case based on its perceived potential to make a profit. It is up to the accused physician and his lawyer to mount a successful defense. Time spent in one’s own defense is never time wasted! I have frequently spoken to physicians who take the view that they are very busy and don’t have time to spend on their case. To me this is a recipe for disaster! The one physician who knows the most about the case is the defendant. It is up to him to work closely with his attorney, bringing out both the strong and weak points of his case. To be sure, the process will be unpleasant, but the time will be well spent. A lawyer cannot properly defend his client if the doctor is too busy to cooperate. Incidentally, it should be noted that the defense lawyer has primary allegiance to the insurer. Therefore, in my opinion it is advisable to retain one’s own attorney to protect the physicians interest. Most physicians worry excessively about the data bank. However, any case that settles, even for 1 dollar, and never came to trial, will land the physician in the data bank regardless of the merits of the case. If the malpractice policy gives the prerogative for settlement to the insurer, and the plaintiff’s demand are less than cost of a trial, the insurer is likely to settle. This is strictly a business decision, but will place the physician’s name in the data bank, regardless of the merits of his case. Eventually, therefore, a large percentage of practicing physicians will be in the bank. For credentialing, hospitals are required to obtain such information. I have been in a position to review these data when judging an applicant for staff privileges. I must admit that data are scant indeed! The data are usually insufficient to judge the merits of the case. I often have to inquire of the physician regarding the case. I do not recall any case in which I have recommended that a physician not be given staff privileges based solely on information received from the data bank. I believe that almost all physicians reviewing data from the bank realize that merely being in the bank does not indicate that malpractice occurred! Once a case is filed against a physician, he may 1390 THE AMERICAN JOURNAL OF CARDIOLOGY姞
VOL. 87
well be called to testify. This is most usually done at a deposition, which is a session in which the plaintiff attorney questions the defendant about his case. Thereafter, other witnesses and experts from both sides undergo the same process of answering questions by the trial lawyer and by the physician’s lawyer in turn. It is here, in “discovery,” that the attorneys gather information for and against the physician. It is here that the case can be won or lost. I have seen doctors come without full knowledge of the details of their case because they feel they are “too busy.” This invites a trial by jury and further unpleasantness at the trial that could possibly have been avoided. The physician must know his case in every detail. One can be assured that the plaintiff lawyer will know it in exquisite detail! His success will depend on it! The deposition is attended by lawyers for the physician and the defendants, as well as a court reporter with tape recorder who is taking down the testimony. In addition, most cases in my experience are also videotaped by a videographer. Only once have I seen the physician’s accusers present at the deposition, although they could be present. If they attend, they are not seated at the table and are not allowed to enter into the discussions. Thus, the defendant physician is not involved with any plaintiffs present. In my experience, the defendant physician can make or break his case at deposition. I have seen physicians show anger, be defensive, and in fact show open hostility to the plaintiff lawyer. I have seen physicians be less than forthright in their answers, or actually be evasive. I have seen physicians be condescending to the trial lawyer, or be excessively verbose. Some even act arrogantly, as if the trial lawyer was not worthy to inquire into his case management or would be unable to comprehend his defense. Such actions undermine the defense. Physicians should realize that trial lawyers have their own expert physicians who will explain the details of the case to the trial lawyer and point out potential flaws in the defense. The defending physician must always be polite and courteous. He must be fully informed and competent to describe why he did what he did. He should never assume that the plaintiff lawyer will not comprehend. He should use lay terms as much as possible, because he is actually talking directly to the jury via the videotape. The latter can be shown to the jury at trial! The physician should never allow himself to be provoked into anger at a deposition. The jury will interpret this as arrogance, and will react accordingly. Note that the plaintiff lawyer may try to provoke the physician. He should resist snapping back, or risk losing his case! The physician should dress neatly and properly for a deposition although the lawyers may come in casual clothes. However, this is not the time to show off one’s best Italian suit and gold Rolex watch! Jurors will find it more difficult to side with the physician who appears to be very wealthy, because that is not likely to be their station in life. The physician should anticipate being asked embarrassing or even hostile questions. In my experiJUNE 15, 2001
ence, lawyers seem always to ask if the physician is board certified and if he passed the exam on his first try. If the boards were not passed, such a question should be answered in a matter-of-fact tone, not defensively. The physician may well be asked about the performance of defendants. I have seen cardiologists being asked about a surgeon’s performance at bypass surgery! The physician should not testify outside of his area of expertise. In the case mentioned, the lawyer inquired about the cardiologist’s surgical training after he ventured an opinion about his patient’s surgery! In the same way, the physician should not speculate. Neither attorney wants speculation. The physician is best served by reciting facts with which he is familiar. I have seen lawyers ask the cardiologist what went wrong with the bypass operation? Because the cardiologist was probably not present at surgery and is not trained as a surgeon, he is better served to defer answers to such questions to a surgeon. The defending physician knows the patient’s postoperative condition. He does not have first-hand information as to what happened at surgery. His answer would therefore be speculation. The physician should maintain decor at all times in deposition and at trial. I once read a deposition that
ended with the plaintiff thanking the defendant for taking his time to attend the deposition. In response, the physician cursed the lawyer! The 4-letter word used appeared in the computer index of his words of the deposition! The physician must have felt better to vent his anger at the lawyer. A jury saw this outburst on videotape. The case was lost! Finally, at a trial, the physician should be erect, composed, and give a feeling of confidence. I once saw a defending physician come to a deposition with his arms draped around 2 physicians from a support group. He could barely walk and was in tears. This scene should never have happened. Luckily, he won at deposition and was spared a courtroom appearance. Had he been better prepared, this would never have happened. On the other hand, I have seen physicians show a big broad smile and give thumbs up sign to his attorney as he left the stand! A trial is not a boxing match. The physician lost his case without every saying a word! He should have shown no emotion and quietly left the courtroom! By paying attention to the details outlined, the physician will go a long way to finding favor with the jury and to receive a favorable verdict.
EDITORIALS
1391
MD
even if an error has been made and the error is well known to the patient. Plaintiff lawyers have affirmed this to me more than once. On the other hand, I recently had a case in which the cardiologist found himself too busy to take the time to explain to the grieving relatives why the patient died. In addition, the cardiologist was described as arrogant, rude, and hurried. The relatives sued even though they weren’t sure malpractice occurred. They merely wanted information. A little time with the relatives would have saved hours of subsequent unpleasantness, not to mention many hours of work time lost. I recently had a case of an uninsured retired patient with severe pneumonia and chronic obstructive lung disease. The patient spent 18 days on a ventilator. The patient nearly died but the pulmonologist saved her life. The bill was enormous. The patient had a decubitus ulcer. The patient sued. Large bills and no insurance may well lead to a lawsuit that would otherwise not have occurred. Another case involved a fireman who developed severe angina while fighting a fire, leading to hospitalization and bypass surgery. He also was uninsured. Workman’s compensation did not cover him because he had angina, not an infarct on the job; therefore, he had no actual injury fighting the fire. Because he needed $28,000 to pay his medical bills, he sued the company having the fire, maintaining that if they had better fire precautions, the fire would not have happened and he would not have required bypass surgery! The doctor prevailed in this groundless claim generated again by large debts and no insurance. In addition to suits arising from bad results, lack of money to pay for medical bills, or hostility to the physician, there are those who sue for money alone. I have been involved in numerous cases in which the patient, with multiple severe diseases, died despite excellent treatment. The relatives sue because they see an opportunity to make a lot of money from a perceived wealthy physician who has insurance. A good plaintiff lawyer will turn down such cases born of desire to “enter the lottery” and make a quick profit. Unfortunately, some overzealous plaintiff expert physicians will convince the trial lawyer to sue in a case with no real merit. It is here that a good defense expert can be of real help clarifying the issues for the jury. Occasionally, I do find a case where genuine malpractice has occurred. A local attorney on television admonishes patients to sue because the doctor has insurance. “That’s why doctors have insurance” she admonishes. She is correct! A corollary of this is that doctors need insurance. Adequate, but not excessive, insurance is a necessary business expense. To “go bare” risks loss of personal savings, whereas a huge insurance limit will actually invite likelihood of a 0002-9149/01/$–see front matter PII S0002-9149(01)01559-4
1389
lawsuit. I can recall defending a nurse and hospital in a case of alleged medication error leading to severe disability. The nurse had a 1 million dollar malpractice policy, which in my opinion, is very high. When the case was settled against the hospital for ⬎10 million dollars, the settlement included the nurses’ million dollar insurance! In my opinion, such a case is almost always against the hospital, the nurse being an employee. However, in this case the nurse was also personally sued because of her large malpractice policy. I firmly believe that she would never have been sued except for her large policy! I once listened to a tape of a trial lawyer lecturing to an audience of physicians. After the lecture he was asked if he would sue a physician who clearly committed malpractice but had few tangible assets and no insurance. He without hesitation said, “of course not.” That response highlighted to me the business nature of malpractice. Trial lawyers are in business to make money. Most of them I have spoken to bear no personal grudge against the physician, but take a case based on its perceived potential to make a profit. It is up to the accused physician and his lawyer to mount a successful defense. Time spent in one’s own defense is never time wasted! I have frequently spoken to physicians who take the view that they are very busy and don’t have time to spend on their case. To me this is a recipe for disaster! The one physician who knows the most about the case is the defendant. It is up to him to work closely with his attorney, bringing out both the strong and weak points of his case. To be sure, the process will be unpleasant, but the time will be well spent. A lawyer cannot properly defend his client if the doctor is too busy to cooperate. Incidentally, it should be noted that the defense lawyer has primary allegiance to the insurer. Therefore, in my opinion it is advisable to retain one’s own attorney to protect the physicians interest. Most physicians worry excessively about the data bank. However, any case that settles, even for 1 dollar, and never came to trial, will land the physician in the data bank regardless of the merits of the case. If the malpractice policy gives the prerogative for settlement to the insurer, and the plaintiff’s demand are less than cost of a trial, the insurer is likely to settle. This is strictly a business decision, but will place the physician’s name in the data bank, regardless of the merits of his case. Eventually, therefore, a large percentage of practicing physicians will be in the bank. For credentialing, hospitals are required to obtain such information. I have been in a position to review these data when judging an applicant for staff privileges. I must admit that data are scant indeed! The data are usually insufficient to judge the merits of the case. I often have to inquire of the physician regarding the case. I do not recall any case in which I have recommended that a physician not be given staff privileges based solely on information received from the data bank. I believe that almost all physicians reviewing data from the bank realize that merely being in the bank does not indicate that malpractice occurred! Once a case is filed against a physician, he may 1390 THE AMERICAN JOURNAL OF CARDIOLOGY姞
VOL. 87
well be called to testify. This is most usually done at a deposition, which is a session in which the plaintiff attorney questions the defendant about his case. Thereafter, other witnesses and experts from both sides undergo the same process of answering questions by the trial lawyer and by the physician’s lawyer in turn. It is here, in “discovery,” that the attorneys gather information for and against the physician. It is here that the case can be won or lost. I have seen doctors come without full knowledge of the details of their case because they feel they are “too busy.” This invites a trial by jury and further unpleasantness at the trial that could possibly have been avoided. The physician must know his case in every detail. One can be assured that the plaintiff lawyer will know it in exquisite detail! His success will depend on it! The deposition is attended by lawyers for the physician and the defendants, as well as a court reporter with tape recorder who is taking down the testimony. In addition, most cases in my experience are also videotaped by a videographer. Only once have I seen the physician’s accusers present at the deposition, although they could be present. If they attend, they are not seated at the table and are not allowed to enter into the discussions. Thus, the defendant physician is not involved with any plaintiffs present. In my experience, the defendant physician can make or break his case at deposition. I have seen physicians show anger, be defensive, and in fact show open hostility to the plaintiff lawyer. I have seen physicians be less than forthright in their answers, or actually be evasive. I have seen physicians be condescending to the trial lawyer, or be excessively verbose. Some even act arrogantly, as if the trial lawyer was not worthy to inquire into his case management or would be unable to comprehend his defense. Such actions undermine the defense. Physicians should realize that trial lawyers have their own expert physicians who will explain the details of the case to the trial lawyer and point out potential flaws in the defense. The defending physician must always be polite and courteous. He must be fully informed and competent to describe why he did what he did. He should never assume that the plaintiff lawyer will not comprehend. He should use lay terms as much as possible, because he is actually talking directly to the jury via the videotape. The latter can be shown to the jury at trial! The physician should never allow himself to be provoked into anger at a deposition. The jury will interpret this as arrogance, and will react accordingly. Note that the plaintiff lawyer may try to provoke the physician. He should resist snapping back, or risk losing his case! The physician should dress neatly and properly for a deposition although the lawyers may come in casual clothes. However, this is not the time to show off one’s best Italian suit and gold Rolex watch! Jurors will find it more difficult to side with the physician who appears to be very wealthy, because that is not likely to be their station in life. The physician should anticipate being asked embarrassing or even hostile questions. In my experiJUNE 15, 2001
ence, lawyers seem always to ask if the physician is board certified and if he passed the exam on his first try. If the boards were not passed, such a question should be answered in a matter-of-fact tone, not defensively. The physician may well be asked about the performance of defendants. I have seen cardiologists being asked about a surgeon’s performance at bypass surgery! The physician should not testify outside of his area of expertise. In the case mentioned, the lawyer inquired about the cardiologist’s surgical training after he ventured an opinion about his patient’s surgery! In the same way, the physician should not speculate. Neither attorney wants speculation. The physician is best served by reciting facts with which he is familiar. I have seen lawyers ask the cardiologist what went wrong with the bypass operation? Because the cardiologist was probably not present at surgery and is not trained as a surgeon, he is better served to defer answers to such questions to a surgeon. The defending physician knows the patient’s postoperative condition. He does not have first-hand information as to what happened at surgery. His answer would therefore be speculation. The physician should maintain decor at all times in deposition and at trial. I once read a deposition that
ended with the plaintiff thanking the defendant for taking his time to attend the deposition. In response, the physician cursed the lawyer! The 4-letter word used appeared in the computer index of his words of the deposition! The physician must have felt better to vent his anger at the lawyer. A jury saw this outburst on videotape. The case was lost! Finally, at a trial, the physician should be erect, composed, and give a feeling of confidence. I once saw a defending physician come to a deposition with his arms draped around 2 physicians from a support group. He could barely walk and was in tears. This scene should never have happened. Luckily, he won at deposition and was spared a courtroom appearance. Had he been better prepared, this would never have happened. On the other hand, I have seen physicians show a big broad smile and give thumbs up sign to his attorney as he left the stand! A trial is not a boxing match. The physician lost his case without every saying a word! He should have shown no emotion and quietly left the courtroom! By paying attention to the details outlined, the physician will go a long way to finding favor with the jury and to receive a favorable verdict.
EDITORIALS
1391