Clinical Review

Chicken soup for the defendant physician

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Facing litigation over an adverse outcome? You’re not alone. An expert offers advice on keeping records, choosing an attorney, preparing a defense—and just plain surviving.


 

References

KEY POINTS
  • The average claim takes approximately 4.2 years to resolve.
  • The burden of proof rests with the plaintiff and his or her attorney, who must demonstrate that the defendant physician’s alleged error was the proximate cause of an injury.
  • Many insurance carriers require the physician to report any unexpected event that suggests a suit might be filed.
  • With surgical cases, it is important that the physician take time to educate the attorney about the technical aspects and limitations of the procedure in question.
  • If there appears to be a special allegiance between the insurance carrier and the law firm chosen to handle the defense, the physician should consider hiring a personal attorney, especially when codefendants are involved with whom there may be some dispute.
The emotional impact of medical litigation upon the defendant physician can be profound—particularly since the average claim takes approximately 4.2 years to resolve, from its occurrence to the closing of the case.1 Unfortunately, litigation affects almost all Ob/Gyns sooner or later. According to a 1999 survey of American College of Obstetricians and Gynecologists (ACOG) members, an Ob/Gyn can expect an average of 2.5 liability claims over the course of his or her career.1 In that survey, 75.6% of respondents indicated that 1 or more claims had been filed against them, and approximately 28% of Fellows reported at least 1 claim for care rendered during residency training.1

For more than 25 years now, I have been involved in some aspect of medical litigation—as an expert witness, a case reviewer for medical liability insurance carriers, and even a defendant. Much of my experience comes from reading the depositions of defendants. Over the years, a number of important elements have become apparent—most of them arising when the defendant is called on to explain his or her medical decisions in relation to an untoward outcome. The pivotal issue often is proper and thorough preparation by the defendant. In some cases, this preparation should begin even before a lawsuit is filed.

The following recommendations are offered as a template for readers facing the threat of litigation. If a lawsuit becomes a reality, be sure to discuss this advice with your attorney, since each case is unique. Note that most insurance companies provide the physician with their own in-house documents designed to aid in the defense process.

The standard of care

Amaloccurrence is not necessarily malpractice. The physician simply needs to demonstrate that the diagnostic or therapeutic rationales he or she used were reasonable and in line with the usual and customary standards of medical practice at the time of the incident.

The burden of proof rests with the plaintiff and his or her attorney, who must show that a well-trained and competent physician, operating under the same or similar circumstances, would not have committed the same error. The plaintiff also must demonstrate that the defendant’s alleged error was the proximate cause of an injury.

Although the definition of “standard of care” varies from state to state, 1 description is worth pondering: what a reasonable, prudent physician would foresee—and what he or she would do in light of this foresight—under like circumstances. If, after careful and complete preparation, the defendant feels he or she has met this definition, the emotional strain will be tempered.

Even so, the process of medical litigation is almost always draining. As ACOG observes in a committee opinion on the subject: “Obstetrician-gynecologists should recognize that being a defendant in a medical liability lawsuit can be one of life’s most stressful experiences. Although negative emotions in response to a lawsuit are normal, physicians may need help from professionals or peers to cope with this stress.”2

Defining and responding to an incident

An “incident” is an event that suggests the patient or her friends and relatives may file a claim. This might be as simple as an encounter in which the patient continues to ask, “Why did this happen?” even after you’ve given what seems to be a reasonable explanation. Or it could be a request for a copy of the records from a legal firm prior to any notice of litigation.

Expecting a claim before it is filed may be crucial to one’s defense. Many insurance carriers require the physician to report any unexpected event that suggests a suit might be filed. Doing so does not increase your premium, but failure to do so may leave you without coverage if a suit is filed later. Be sure that you review and understand requirements and obligations of this kind when creating a liability policy.

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