Your Best Defense

May 1, 2003

Three steps to reduce your chances of a lawsuit - and five ways to fight back

Emerging from the courthouse late on a warm spring afternoon, malpractice defense attorney Lyn Broom and her client were surprised to find waiting for them a juror who had served during their trial. The jury had already found for the physician, but the juror had been elected by her peers to deliver him a message.

"She said she'd been chosen to tell him they all were really sorry that he had to go through this for three weeks," recalls Broom, of the firm Smith Moore in Greensboro, N.C. "She said, 'It was very obvious to us that you took this very seriously ... and that you were very sincere in your belief that you did nothing wrong.'"

In that respect, says Broom, her client, an anesthesiologist who asked not to be identified, accomplished one of the primary missions of any physician in his position: Not only did he convince the jurors that he'd done nothing wrong, he had many of them wishing that he was their doctor.

Still, in some ways his case can serve as a cautionary tale for modern doctors in a litigious society. Had certain things been done differently early on, particularly in documentation, it's possible no lawsuit would have been filed at all. On the other hand, had the physician not involved himself so fully in his own defense -- something many physicians fail to do --  the case could easily have been lost.

If you've never been sued for malpractice, count your blessings. But don't assume your good fortune is the sole result of your medical skill -- or that you will never find yourself in a courtroom. Lawsuits are more frequent, and jury verdicts for the plaintiff -- though still rare in frequency -- are increasing in dollar amount. And professional liability premiums are spiking.

One thing's for sure: As long as there are doctors and plaintiffs' lawyers, doctors will get sued and the lawyers will reap the rewards.

But you don't have to be a passive victim. Here are three steps to reduce your chances of being confronted by a lawsuit -- and five ways to fight back if you are.

Avoiding a lawsuit

Step one: Communicate fully

If there's one universally accepted principle in risk management, it's that physicians who communicate with their patients the best get sued the least.

"Bottom line: patients want to feel like physicians have provided care, as opposed to just treatment," says Debbie Willis, assistant vice president of risk management for State Volunteer Mutual Insurance Co. (SVMIC), a multistate malpractice insurance carrier based in Nashville.

Physicians have been hearing about the importance of communication for decades. Yet mishandled patient relations (sometimes by physicians' staff) persist, and experts worry that the increasingly hurried world of managed care may be making things worse.

There was the case of the office employee who cheerfully informed a patient over the telephone that the patient didn't have cancer; she had non-Hodgkins lymphoma. There was the son who tried to find out why his father was paralyzed following an angiogram, only to have a succession of doctors tell him to ask someone else. More common are the countless examples of little slights that cause patients to think their physician doesn't care: the unreturned call, the brusque nurse, the rushed encounter.

These fumbles by themselves don't amount to malpractice. But they put patients in a sour, sometimes litigious, frame of mind.

"All too often, when I interview clients and ask, 'What did the doctor tell you about what happened?' they say, 'He didn't tell me anything.' Or 'What he told me didn't make any sense.' Or 'You know, I couldn't find him for two or three days,'" says Neal Roth, a plaintiffs' attorney in Miami, and the past president of the Florida Academy of Trial Lawyers. "I do a fair amount of lecturing at CME programs, and that's the theme I've been discussing for 25 years. And sadly, I don't think it's gotten better; I think it's gotten worse."


Roth believes managed care has forced doctors to spend less time with more patients, making good communication harder and creating a culture that has diminished the personal relationships between doctors and patients. Still, he says, wise doctors find the time to spend with patients because it is in their own interests: "Not everyone wants to run to a lawyer."

How can you improve your patient interactions? One way might be to add a patient advocate to your practice -- someone with excellent problem solving and listening skills to whom patients feel comfortable taking their concerns, and who has the authority to address problems. (This might mean hiring a new staff member, but you might also alter the duties of one of your current employees.)

Ask your patients more questions about what's going on in their lives, and listen for the emotional content of their responses rather than just the facts of what they've said.

"Sometimes it's nothing more than making sure, before the patient leaves, that you ask, 'Have I answered your questions? Have I done what you wanted me to do? Do you feel like you've received the care that you came to receive?'" advises Willis.

It's important to remember, Willis says, that while you and your nurses are accustomed to the hectic pace in your office or at the hospital, patients aren't. That often contributes to a perception gap between doctors and patients regarding the quality of their interactions.

"It gets to be so routine" for medical professionals, Willis says. "I think it's easy for the perception gap to increase when you forget what it's like to be the patient."

Step two: Be honest

When there has been an adverse outcome, experts also agree that doctors should be straightforward with patients, explaining fully and directly what went wrong. Avoiding patients and families who are angry or frustrated will only increase your chances of being sued, as will giving them explanations that they can't understand.

Never try to take advantage of your superior medical knowledge by giving a patient an explanation that is imprecise, unclear, or untrue; malpractice lawyers are adept at reading medical records, so any discrepancies between what you told your patient and what's in the record will only convince a lawyer that you have something to hide.

Jack Wurgaft, a Springfield, N.J. plaintiffs' lawyer, says that when he examines records that seem incomplete or inconsistent with what the patient was told, "then I say to myself, 'I'm going to look further.' But when I see an honest and forthright explanation of something, my suspicions aren't as great as they would be ordinarily."

Candor is recommended even in cases where the physician believes the outcome may have been the result of substandard care, although proper phrasing is vital in such instances. Being forthright doesn't mean admitting guilt -- which is never advisable.

It can be a difficult line to walk, but doing so deftly is more likely to help avoid a lawsuit (and makes one easier to defend) than when physicians hide from patients or the truth.

"It's one thing to say, 'The patient experienced post-operative bleeding,'" says Roy Kaufman, a defense lawyer based in Melville, N.Y. "It's another thing to say, 'This patient bled because the assistant surgeon didn't hold the clamps correctly.'"

But what if the patient asks why an adverse outcome occurred, and you think it's because, for instance, someone left a clamp inside the patient that should have been removed? "You can say, 'We left in a clamp.' You don't have to say, 'We screwed up,'" advises Houston-based defense attorney Robert Swift, head of Fulbright & Jaworski's health law practice.

For further guidance on what to say and how to say it, consult your malpractice carrier or your hospital's risk management office.


Meanwhile, in conversations with patients, don't point fingers at other doctors, nurses, or at "the system" within a hospital or other institution. And never use the medical record as a forum for expressing frustration with others.

"Sometimes it's self-serving" when physicians seem to place blame on others, observes Swift. "Maybe they think they're helping themselves, but usually these observations are based on incomplete information, hearsay, or erroneous assumptions, and when lawyers see frustration expressed, they think they've got something."

Step three: Document completely

The record is the central piece of evidence in a malpractice case, and it can be used to defend you or to condemn you. Therefore, it should reflect fully what you did in treating the patient and why, but it should be free of superfluous information or personal opinions that could come back to haunt you.

Lyn Broom's defense of the North Carolina anesthesiologist underscores the importance of good documentation. The case involved a woman who reacted badly to the antibiotic vancomycin during a coronary artery bypass graft. Her lawyer alleged that the reaction was caused by the drug being administered too quickly.

The physician insists that he had it on a slow drip. The medical team discontinued the drug the moment they recognized the patient's distress, and once she was stabilized, "the nurse understandably took the whole apparatus down and pitched it all, and hooked up a different antibiotic," reports Broom.

Should someone have documented exactly how much of the vancomycin had gone into the patient before the drug was discarded? Such a documentation isn't required, but "it would have been very helpful," Broom says.

That's because the plaintiff theorized that the drip was not properly clamped, so no one noticed as the drug flowed freely into the patient. This allegation was made without direct proof, and in the end the jury rejected it, but the whole matter of how much of the drug was administered could have been put to rest if someone had documented it.

"It's not to say necessarily that the case wouldn't have been brought, but one of their arguments was that, 'You didn't document that there was any left, so you must have given her all of it,'" says Broom.

A successful malpractice defense comes down to your ability to demonstrate your competence as a physician, your caring about patients, and conscientiousness in the way you perform your duties. Many doctors who work hard on the first two elements are found lacking on the third, because conscientiousness is partly about administrative, seemingly nonclinical tasks -- including meticulous documentation.

The medical record will also be the deciding factor in whether a smart malpractice attorney will accept a case against you. Almost all such cases are taken on contingency, and only one in three cases results in any money being paid to the plaintiffs. If the record gives him little or nothing to go on, he will likely drop the matter.

"I think there's a lot of good medicine being practiced out there," says SVMIC's Willis, "but when it's challenged, there's not always a lot of good documentation to back up the good medicine. And that immediately puts you at a disadvantage should you be called upon to defend it."

How to fight back

Step one: Prepare for battle

No matter what steps you take to avoid lawsuits, it's impossible to prevent them all. What should you do if you are actually called to defend yourself? First, don't panic. Frightening as the prospect of a malpractice lawsuit is, it may be comforting to remember that you are probably going to win. Sixty-one percent of medical malpractice suits are dropped by the plaintiff or dismissed by a judge; only 1 percent of cases result in a jury verdict for the plaintiff.


Second, try not to take it personally. A lawsuit filed against you doesn't mean you're a bad or uncaring doctor -- only that one person, upset that things did not go as well as hoped and looking for someone to blame, has chosen you. Of course, that isn't to say that all malpractice claims are frivolous or that there are no bad doctors, but even plaintiffs' lawyers concede that most people who come to their office looking to sue don't have a case.

Third, steel yourself for battle, because once a suit has been filed against you, unless it's quickly dropped or dismissed, it's likely to tie you up for years. You'll have a lot of work to do in your defense during that time, and you really don't have the luxury of not doing it. Even if you've done nothing wrong, turning everything over to your attorney and failing to involve yourself intimately in your defense is about the surest way there is to guarantee a fat award for the plaintiff.

Step two: Coordinate your team

In the days immediately following the filing of a complaint against you, your two most important tasks are coordinating with your malpractice carrier and choosing your lawyer. Your relationship with each is vital.

Your carrier pays for your lawyer, monitors your case with an in-house attorney or adjuster, and consults with your counsel about how to proceed. Depending on the company and the type of policy you have, it may even override your wishes on whether to settle the case or proceed to trial (more on that later).

You should call your carrier the day you find out you're being sued, and have with you all the relevant information you can gather about the case. A claims adjuster or attorney will ask you to walk him through the case chronologically. And you'll be reminded not to discuss the details of the case with anyone except your spouse.

After that, your carrier will likely assign you a defense attorney. But most companies will try to honor an attorney preference, if you have one - and it behooves you to play a role in the selection.

How do you find a good lawyer? One way is word-of-mouth, the same way many of your patients found you. That means telling your colleagues about your plight (you can do that as long as you don't reveal any details about your case) and asking if they can recommend any attorneys. It's embarrassing, but no one should be more sympathetic than another physician.

You should also check with the risk management department of a large local hospital. The risk managers will have information on all of the area's top malpractice defense attorneys. It's advisable to get a list of good lawyers even before you run into a legal problem.

"When you sit down with the attorney, you have to assess his willingness to listen to what you have to say -- to get on board with the idea that this case is defensible," advises Philip Fontanetta, an orthopedic surgeon in Mineola, N.Y., who recently won a malpractice case that dragged on for six years.

"If an attorney can't believe your position, you can't expect him to advocate it."

If your personalities clash, if you have irreconcilable differences over strategy, or if you simply think you've been given a lemon, ask for another attorney. With its own money at stake, the carrier will probably honor your request.

"You have to meet with your lawyer many times during the course of a lawsuit," says Kaufman, who represented Fontanetta in his recent case. "And if at any point the physician becomes unhappy with the attorney, he has an absolute right to request a new one. That's what he's paying for with his premium dollar."

(It's possible that, even before the filing of a suit, you'll receive a "claim letter" from a patient's attorney that serves as an early warning that a lawsuit may be imminent. It may be possible to head off a lawsuit in such cases, but you shouldn't do anything before first contacting your carrier and a lawyer, just as you should if you're actually being sued.)

Step three: Ace your deposition


Attorneys on both sides are often surprised by how unprepared for their depositions physicians can be.

"The deposition is really the script for the trial," says Kaufman. "It has three purposes. The first is to discover information not previously known. The second is to lock in the witness' story -- to know what the person is going to say at trial. And the third is to set up the witness for impeachment purposes," that is, to get the witness to say things that can later be challenged, creating doubt about his credibility. "Usually when you have a physician who understands the importance of the deposition, and is well-prepared for it, by having reviewed his records with the attorney -- they make the best witnesses at trial."

Yet many physicians seem to underestimate the importance of the deposition, while overestimating their ability to wing it.

"They don't study their records, they don't study the hospital chart, they don't review reliable literature," says Roth. "They think they can't be challenged. And good lawyers are able to challenge them."

Most malpractice attorneys haven't gone to medical school, but the good ones are masters at second-guessing doctors. If they didn't, they'd go bankrupt.

And remember: the plaintiff's lawyer has the advantage of recent and continual access to your former patient, who probably remembers the details of your encounter better than you do.

You will probably spend hours with your attorney, over the course of several meetings, reviewing the details of the case in preparation for the deposition. You should also spend time on your own researching the medical literature, looking for things that will help your case or your opponent's.

"Rather than just turning the case over to the lawyer and saying, 'I'll see you at deposition [or] I'll see you at trial,' if they're accessible, information gathered with the help of the physician may help get the case dismissed," says Broom, because the physician may know facts about the case or uncover research that discredits the plaintiff's claim.

Yet because the deposition is also the plaintiff's chance to test your instincts as a witness, it is not enough to have a firm grasp of the facts. The deposition gives each side a chance to see whether your demeanor during trial will be pleasant enough, despite the unpleasant circumstances, to allow the jury to indulge its natural desire to trust you. Your performance at a deposition is one of the most important factors in deciding whether to proceed to trial or to offer a settlement.

"It's an opportunity for everyone to get a look at the doctor and evaluate how that doctor's going to be as a [trial] witness," says plaintiffs' lawyer Wurgaft.

Step four: Know when to fold 'em

You can try to settle the case at any point along the way, but the weeks following depositions may be your last, best chance.

Should you settle? There are innumerable factors to consider, but for the most part, the decision comes down to four sets of questions:

o How well can you defend the facts? If the case were to be decided by a jury truly of your peers, would your medical decisions be judged as falling within the standard of care?

o How well can you convey empathy and expertise? In a trial before a jury not of your peers but of the plaintiff's peers, how much will the jury respect you? How credible will you seem? What about the plaintiff's credibility?


o Is your documentation clear and reasonable?

o How much insurance coverage do you have? Could you be ruined by a bell-ringer judgment for the plaintiff?

Fontanetta never considered settling his case, in which a man with chronic back pain on whom he performed a spinal fusion as part of a decompression laminectomy sued him and another doctor after the procedure failed to alleviate his pain. The doctor says his reason for pushing forward all the way to trial was simple: he had done nothing wrong.

"Just because you have an adverse outcome or a complication" doesn't mean you committed malpractice, he says, and settling under such circumstances only "adds to the egregiousness of the system, and it also puts you in a bad light. If you believe in something, you ought to be able to stand up and defend it."

He points out that settlements must be reported to the National Practitioner Data Base, which HMOs, hospitals, and other organizations that credential doctors are required by law to query.

Still, many doctors are so brutalized by the process leading up to trial that they settle cases they could probably win. In fact, Willis says SVMIC must more often talk physicians out of settling than talk them into it - even though it is the carrier's money primarily at risk in a trial. (Willis says SVMIC never settles a case without the physician's approval.)

"Sometimes the physician loses the drive, the will, to go all the way through to trial," Willis says. "You can't underestimate the emotional toll that this process takes on a human being. It's a very draining process. We have to buck 'em up."

But what if your carrier wants to settle and you want to fight? Some carriers won't settle any case without your consent. But many physicians pay a premium for special policies that allow them to demand a trial (though not a settlement).

Finally, when deciding whether to settle, consider whether you have enough coverage to handle a large award against you. With only about eight malpractice cases out of 10,000 resulting in jury verdicts for the plaintiff of $1 million or more -- and many of those later reduced on appeal -- it's unlikely you'll face financial ruin, provided you have adequate coverage. But it's not impossible.

Step five: Handling the trial

If you proceed to trial, you must commit to the trial process. That means you have to be in the courtroom most days, or every day, not just for your own testimony.

"I was there for probably three-quarters of the trial," recalls Fontanetta. "And that is burdensome. And it's a tremendous emotional drain to sit there and have them bad-mouth you. You'd like to wring their necks -- especially the experts. But it does help to be there, to look [plaintiffs' experts] in the eye when they're testifying. ... And I think the jury picks up on that. They see that interplay. On the other hand, if a doctor's not going to show up for the trial ... I think the jury picks up on that, too."

Each side will present expert witnesses. The experts are important, but only to the extent that one side's witness lacks credibility. In most cases, when both sides' witnesses are impressive, they cancel each other out in the minds of jurors.

Likewise, the testimony of the plaintiff, while important, is less crucial than your testimony because the trial is primarily about whether you acted within the standard of care, and that is not a question a plaintiff is qualified to address. Still, he can portray you as unsympathetic and uninterested in his concerns, and you'll have to counter that with your demeanor in court and on the stand.

Your testimony, more than anyone else's, is the climax of the trial. Fontanetta, the orthopedist, and Broom's anesthesiologist client each performed demonstrations at their respective trials, using props that they had created at their own expense. That helped demonstrate to the juries that the doctors know what they're talking about, while also making the point that they care.


"Sometimes I tell my clients that it's not what you say; it's how you say it," says Kaufman. "The jury comes away knowing you as a witness more from the way you appear than from the testimony that you've actually given. For a physician, it's really important that the jury walk away saying, 'This is a physician that I would like to go to if I had a similar health problem.'"

Like Lyn Broom's client, you'll have to get the jury on your side if the case goes to trial -- and that means stifling your contempt for trial lawyers and the malpractice system and doing your best to come off as sympathetic, warm, and compassionate.

Hokey? Maybe. But jurors are laymen, and laymen separate good doctors from bad ones not based on their medical skill, but on their ability to connect with people on a human level.

"You're the prime witness," says Fontanetta. "It's all about you. When all is said and done, it's about the doctor -- and how the jury perceives the doctor."

Bob Keaveney, associate editor for Physicians Practice, can be reached at bkeaveney@physicianspractice.com.

This article originally appeared in the May 2003 issue of Physicians Practice.