Take a step-by-step look at how a medical malpractice civil case plays out and learn what parts of the process can be particularly rough for physicians.
The desk is scattered with highlighters, pens of different colors, various file folders, exhibits and documents. It’s a strange environment with words, phrases, laws and rules that you don’t understand. You are in court as a defendant in a medical malpractice case.
How did it get to this point? What can you do to survive? A little better understanding of the process and a few tips may help you survive, thrive and succeed in a world that is different than anything you’ve experienced to this point in your entire medical career.
It could have been a case that you thought went great. There were no particular problems. You didn’t detect any abnormal anatomy in an excellent surgical candidate. But somehow, something unexpected occurred because four days after surgery, the patient returned to the emergency room and within a few hours had a full arrest and died. It doesn’t help that the surgical procedure occurred nearly seven years ago.
There are techniques that you can use to help you survive one of the most challenging emotional situations that physicians will ever encounter. You may not personally experience the courtroom as a defendant. However, as a physician leader, it is nearly certain that a malpractice case will be filed against someone on your staff. An understanding of the basic process may help you empathize with and guide those you lead.
Most malpractice cases never make it to the courtroom. In fact, only about 7 percent get to the point of a jury trial, according to medicalmalpractice.com. The outcome is in favor of the plaintiff in 21 percent of those cases. An average jury award for a plaintiff decision is approximately $799,000. The average patient waits 16.5 months to file a lawsuit and another 27.5 months to reach resolution.
It obviously is important that you do all you can to be on the winning side of that equation. A plaintiff verdict involves not only financial consideration, but also involves an entry in the National Practitioner Data Bank, reports to state medical boards and hospital credentialing bodies, not to mention issues with self-doubt, ego and future credibility.
Malpractice Case Process
The process begins with a case or patient encounter in which a patient believes that he or she has been injured, harmed or mistreated in some way that falls below the standard of care. The statute of limitations on most malpractice cases is one year, but may be longer in some specialties, particularly obstetrics and pediatrics.
Most states allow an extension of this time by the process of what is referred to as a “180-day letter.” This letter, if filed properly, in essence extends the statute of limitations for another six months to allow the attorneys for the patient to further evaluate the case. It is at this point that the physician should definitely involve malpractice carriers and legal counsel for advice. If at any point a physician believes he or she may be sued, the malpractice carrier and defense attorneys must be notified.
After the lawsuit has been filed, one of the first formal legal processes may be the discovery deposition. Lawyers for the plaintiff request that you answer questions about the case under oath in the presence of a court reporter. It can involve video, but is usually only a verbatim transcript of your words.
When complete, it will be transcribed and presented to you for review. It is vitally important that you carefully review the deposition and make any changes in order for the document to accurately reflect the answers you conveyed. The importance of the deposition cannot be stressed enough. Depositions will become the basis upon which the court case will be built. You will be prepared for this process by counsel, but you can also supplement that preparation. Although the physician is usually emotionally invested in the case, the plaintiff’s attorney is not. It is strictly a business relationship for them and they are very comfortable in this situation. You cannot know the medical record too well.
There are very few rules for opening arguments. Prepare yourself to hear statements about you, your clinical expertise, decision-making ability and judgment that are not true. It is important that you not outwardly react.
Questions will be asked in ways that seem strange, confusing and almost irrelevant at times. Trust that there is a method to this madness. Your attorney will be present to guide you, but you will still be the one answering the questions.
To the best degree possible, the physician must be emotionally detached during this process. There will be attempts to irritate, confuse and distract you to get your testimony on the record in such a way that it can be used against you to obtain settlement or a plaintiff verdict at trial. You cannot change your testimony between deposition and trial without a very good reason, so it is important to listen carefully, make sure you understand the question and answer only what is asked. Refer directly to the medical record as much as necessary. Do not allow yourself to be rushed. Questions by opposing counsel during deposition and at trial often will be phrased in strange ways: “Wouldn’t you agree that . . ., Can we agree that . . ., Hypothetically, let’s consider and agree that . . .” The list of confusing introductory questions is simply endless. Don’t agree unless you really agree! Ask for questions to be rephrased. State that you don’t understand what they are asking. Get clarification to the greatest extent possible. It cannot be stressed enough — never answer a question without fully understanding what you are being asked.
Over the ensuing months, other depositions may be obtained from others involved in the case. Expert witnesses may be obtained. Negotiations may begin for settlement. Some, but not all, malpractice carriers require consent from the physician to settle. If settlement is proposed, be sure to understand the consequences. If there is no settlement, eventually a trial date will be set.
Malpractice Jury Trial
Prepare for potentially the most grueling emotional experience you may ever have as a physician. But this is not like a TV crime drama. It is real life, and how you prepare, react, respond and present yourself could affect your personal well-being for years to come. The trial really begins with pretrial preparation. It could well be several years since the case in question occurred. In some ways, the passage of time may help you use one of the most important coping mechanisms in your arsenal: detachment. Pretend that this is not about you and your case. At this point, your attorneys will be developing the legal strategy to defend you. Although you will not be able to understand all the nuances of a jury trial, they will help you understand the process in a general way. Read and re-read every page of the medical record that is pertinent. You will need to essentially memorize your deposition and become intimately familiar with those of the expert witnesses.
Let your legal counsel guide you. Do not become emotionally engaged. Clear your schedule completely. The week of trial you will need to focus all your energy on survival. Prepare for total immersion in the trial.
Understand the trial schedule to the best of your ability. Determine when you will testify if at all possible. Trials move at a different pace than clinical practice. There will be recesses and interruptions at times that will not make sense to you. Prepare to go with the flow. An average jury award for a plaintiff decision is approximately $799,000.
Develop a daily schedule that works for you. A little light aerobic exercise may be helpful, particularly in the morning to take the edge off before the day begins. No matter when you are told to arrive, show up early to get the lay of the land. Plan to eat lightly all week long and avoid food high in carbohydrates during the day. This will help you stay alert and focused. It will not sit well with the jury if you appear to be dozing at any point.
As a clinician, you will not be accustomed to sitting still all day. Practice this if you can. When sitting, do not slouch; maintain good posture. Avoid drinking too much fluid so that you will not have a full bladder. You do not control the breaks. In fact, it is good to realize that you do not control anything!
On day one, jury selection occurs. You will be given a list of jurors who are available and they will be seated in order. The number of jurors can vary between eight and 12. In a small community, it can be challenging to select a jury for many reasons. Potential jurors may be patients, friends or acquaintances of you or your family, coworkers, etc. Sometimes jury consultants can be used. It is important that you have a jury that, while fair and impartial, can support a defense verdict for you.
After the first group of eight or 12 is seated, the questioning begins. First, the plaintiff’s lawyer asks questions, then the defense. The object is to identify those jurors with pre-determined prejudice. After the first round of questions, jurors will be “challenged for cause.” Either side can challenge for cause, which essentially means that a juror is unsuitable based on the perception of potential conflict of interest to serve on this particular jury. The judge will make rulings for cause. Each side will have a specified number of “pre-emptory” challenges, meaning that jurors can be excused from service without specific reason. This process is continued until the specified number of jurors and alternates is seated.
Obviously, you would like to have a jury that you perceive as favorable to your side as possible, but that is the opposition’s goal as well. You will feel like you know quite a bit about each juror when the process is complete if you pay close attention. The better you can know your jury, the more you can tailor your tactics to their tendencies. Begin to make eye contact with the jurors. You will be developing a relationship with them and they ultimately will decide your fate.
Opening arguments begin after the jury is selected. Again, the plaintiff goes first, followed by the defense. This sets the stage for the trial. The plaintiff has the “burden of proof,” but the standard is not “beyond reasonable doubt.” That is the standard for most criminal cases. For civil cases, such as malpractice, the standard is “preponderance of evidence.” In other words, if the jury believes that the evidence is more than 50 percent certain on either side, they are instructed to cast their verdict in favor of that side. Both sides will set the agenda for the trial during opening arguments. The plaintiff will state what they will prove and your defense attorneys will likely disagree with the plaintiff’s statements and describe how the evidence will be refuted.
There are very few rules for opening arguments. Prepare yourself to hear statements about you, your clinical expertise, decision-making ability and judgment that are not true. It is important that you not outwardly react. The jury will be watching you and reading your reaction. Do not stare at them, but do not be afraid to make eye contact when possible. The jury must begin to believe that you truly have nothing to hide.
he plaintiff’s case is next. You very well may be called as the first witness for the plaintiff to put your testimony into the record and, where possible, impeach you with prior inconsistent statements from your deposition.
If you are called first, remain calm. Answer the questions, but attempt to explain if necessary. This is slightly different than the deposition. Explanation, within reason, is good during the trial. The plaintiff’s counsel may not allow you to explain much. Do not worry about this. You will get your chance to explain during your direct examination by your attorney.
The counsel for the plaintiff likely will now call their expert. It is important to realize that an expert for the plaintiff may not be an expert, as you would define the word. They may have just enough expertise to express an expert opinion that supports the patient’s case. It is up to the jury to weigh the opinions expressed and then determine which opinions to believe. It doesn’t seem particularly fair, but again, the defendant does not control the process. Legal precedent sets the rules.
Experts for the plaintiff often do this for a living. Be prepared for them to testify that it is their opinion that you did not use reasonable care, were negligent in some way and to clearly state that they believe that the care you rendered was below the standard in some way. Again, do not react physically or emotionally to the greatest extent possible. This is their job. They have been well paid by the plaintiff to express this opinion.
They will attempt to show evidence from medical literature that supports their point of view. This will be one of the emotional low points of the trial for the defendant. You may feel as if you have taken several physical punches. Emotional testimony from family members and friends may also be elicited by the plaintiff before they rest their case.
Now it’s your turn. Likely your attorneys will call expert witnesses first. The expert witness for the defense is like a knight in shining armor. He/she will testify that you followed a reasonable course of clinical action and met the standard of care.
Your expert will be used to refute any and all opinions stated by the expert for the plaintiff. The plaintiff’s attorney will have a chance to cross-examine your expert as well. You will likely be called as the last witness. Finally, you get to tell your story in a logical, almost story-like fashion.
You will get to stand in front of the jury and get the opportunity to engage them with your personality. Be personable, be respectful, don’t talk down to the jury. You must finish your version of the facts with the jury believing you provided the best patient care possible. After both sides rest, it is time for closing arguments. Plaintiff first, defense next, but this time the plaintiff also gets a rebuttal. This is similar to opening statements.
Arguments can be made that don’t seem to be supported by facts. Plaintiff’s counsel will emphasize portions of the trial that supported their case. Your attorneys will bring out the facts and evidence that support your appropriate care.
The plaintiff’s closing argument can be very emotionally challenging. You have been listening to positive statements supporting you for a while and it can be a shock to hear what is said during closing by the opposition. Be patient. The trial is nearly over, but awaiting the verdict will certainly test your patience.
The jury will now be instructed in the law that pertains to your case. Yes, it seems a little backward to hear the case before hearing about the law, but that’s the way it works. They will be given instructions, then proceed to the jury room to deliberate the case.
Since it is a civil case, the verdict may not have to be unanimous depending on the jurisdiction in which the case is tried. When the requisite number of jurors decides for either side, the case is over. If the jury finds for the plaintiff, they will need to determine damages. Prepare for the jury to reach a verdict for either side, but remember that the defense wins about 80 percent of the time. Either way, there may be an appeal, but that is a discussion for another day.
A malpractice case that results in a jury trial can be a truly emotionally challenging event for even the most prepared physician. The process is foreign and proceeds at a pace with which the average clinician is not familiar. It is important to understand the process. Prepare well, follow the advice of your counsel and use a few basic techniques of survival. There is no way to completely avoid the pain associated with a malpractice lawsuit, but you can certainly decrease the impact with proper preparation. Good luck.
Michael R. Canady, MD, MBA, CPE, FACS, is chief executive officer of Ohio-based Holzer Health System. He wrote this for the American Association for Physician Leadership in 2016.