How to Survive a Medical Malpractice Lawsuit

Acknowledgments viii

Foreword ix

Introduction xi

Section 1: The long road to trial 1

1 You’ve been served! Now what? 3

Questions to ask your insurer about your policy 3

What are the options if your employer purchases your insurance policy and dictates the terms? 6

When and how to report a claim 7

A few pitfalls to avoid after you’ve been sued 8

2 What is medical malpractice? 13

The criteria of physician legally defined malpractice 14

EMTALA issues 18

Complaints to the medical board 19

Alternative Dispute Resolution (ADR) 20

3 How to choose an attorney 23

Questions to ask your attorney 23

Conflicts of Interest 25

Problems with the Hospital as co-defendant 26

How do you change your attorney? 28

4 Coping with a medical malpractice lawsuit 31

Kubler-Ross five stages of grief 32

Maslow five stages of needs 36

Strategies for coping 39

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vi Contents

5 Before the deposition 40

Differences between federal and state court 41

Addressing the complaint 42

The discovery phase begins 43

Meeting with your attorney 43

The in-house physician review 44

6 Nail the deposition 46

Preparing for the deposition 47

Dealing with co-defendant issues 47

General deposition rules and tips 50

Sample question and answer scenarios 53

7 All about experts 62

Expert qualifications 63

Daubert rules regarding medical expert testimony 64

The defense expert 66

The plaintiff’s expert 67

Using the plaintiff’s expert to help your case 69

What if their expert is lying? 70

8 Pretrial countdown 72

Reviewing your deposition 72

Motions to dismiss the case 73

Should you settle your case? 75

Preparing for trial 77

9 The trial 79

Rules to follow when in court e.g. How you should dress 80

Jury selection 81

The cross-examination with tips and question and answer scenarios 84

Jury Deliberation 94

Damages 95

10 What to do if you lose 97

What are the steps to getting an appeal? 97

Can you get your attorney to file an appeal? 98

Settling in lieu of an appeal 99

Section 2: An ounce of prevention 101

11 Why doctors get sued 103

Bad outcome 103

Should you apologize? 104

What makes patients angry? 105

Methods to prevent patients from becoming angry 105

12 Communication Issues 112

Effective communication 112

Foreign language issues 113

Informed consent 114

13 Good documentation makes a difference 116

Documentation of Informed Consent 117

Destroy your diary or patient log before you get sued 118

Be aware of your electronic footprint 119

14 Liability risk with the use of physician extenders 122

Vicarious Liability 123

How should you run your practice? 125

15 Hospital issues 127

Peer Review 127

Hospital Privileges 128

Risk Management: Does it help you? 129

The Against Medical Advice (A.M.A.) form 130

Suspension of privileges 132

16 Summary 133

Appendix A Expert qualification requirements vary by state 137

Appendix B Arbitration mediation and pretrial screening panels 141

Appendix C Collateral source reform 145

Appendix D I’m Sorry Laws 148

Glossary 150

Index 157