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Successful physician, defense counsel partnership aids in resolution of malpractice claims
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Orthopedic surgery is a technical field that carries professional risk. The results from most orthopedic interventions are usually readily visible on radiographs. As such, the profession is among the most frequently involved in litigation related to suboptimal outcomes that are distressing for the surgeon and patient. Most orthopedic surgeons are aware they will be accused of medical malpractice at least once in their career. Once served with a lawsuit, the surgeon becomes a defendant in a medical malpractice lawsuit and enters an unfamiliar world in which the professional language, rules and procedures are different from medicine.
After the lawsuit is filed, an attorney appointed to defend the surgeon will enter the picture; this person is called the defense counsel. It is important to understand the role of the defense counsel and how to work effectively with that person. The defense counsel is usually appointed by the physician’s employer or the insurance company that issued a policy covering medical malpractice claims. This Orthopedic Medical Legal Advisor column is aimed at helping surgeons work effectively as a team with defense lawyers to ensure the best possible resolution of the malpractice claim.
Response to lawsuit
B. Sonny Bal
Surgeons typically exude confidence, control and authority over their environment. Like professionals in similar situations, the initial reaction to a lawsuit alleging professional misconduct is one of anger and frustration. The list of accusations in the complaint filed can often read like a tiresome litany of false and frivolous demands. There is an immediate temptation to set the record straight, either by clarifications in the written record or by contacting the patient (who is now a plaintiff in the lawsuit) and explaining the matter. This Orthopedic Medical Legal Advisor column offers some practical pointers to the surgeon who finds himself or herself as the target of a medical malpractice lawsuit.
The defendant physician should never contact the patient or the lawyer representing the patient. Once the lawsuit is filed, there is no going back. The patient is now an adversary, and any contact with the opposing parties should be through the defense counsel only. Another important point is the surgeon should not alter anything in the written records that pertain to the care of the patient. This is all the more important with modern electronic medical record systems, where any addendum or alteration in the record has a date and time identification.
Who is represented?
The defense lawyer is usually the first representative of the legal system that the defendant physician will encounter. While the defense counsel appointment is usually up to the insurance carrier and/or employer, that professional will be representing the defendant surgeon as a matter of legal professional duty and ethics. A separate attorney may be hired by the insurance carrier, hospital or employer to advocate the interests of those parties. Thus, while the defense counsel may be paid by an insurance company or an employer, the duty of professional responsibility is owed to the defendant surgeon. As an analogy, surgeons may be reimbursed for surgery by an insurance company or government payer, such as Medicare, but the primary professional duty of the surgeon is toward the patient.
The attorney-client relationship is taken seriously by the legal profession. As an example, legal professional rules generally prohibit non-compete clauses in law firm employment contracts with new lawyers. The reasoning is the client’s access to his or her lawyer supersedes any business interests of the employer. In contrast, non-compete clauses are common in medical employment contracts, suggesting the profession views patient access to his/her surgeon as less important than the business interest of a medical employer.
Interaction with defense counsel
In working with the defense counsel, it is normal to vent anger and frustration at the system. With that said, it is important to understand the attorney representing the surgeon has the task of understanding the entire case and developing a credible theory of defense. This is important work that will consume time and resources and will affect the resolution of the lawsuit. The quality of the eventual outcome depends critically on physician understanding and cooperation. Unfortunately, working with the defense counsel is demanding of physician time, and there is no compensation for this activity.
The first meeting with the defense counsel will be targeted toward a records review and sharing physician perspective on the facts of the case. There may be legal housekeeping functions that need completion, such as completing interrogatories submitted by the opposing party, addressing any motions filed after the lawsuit and submitting documents. With all the demands on physician time, these steps may be onerous, but these are a critical part of the litigation process and should be taken seriously. The successful resolution of a civil dispute, such as a medical malpractice lawsuit requires time, thinking and active participation of the defendant surgeon.
Discovery is a procedural tool designed to encourage information sharing between disputants by means such as interrogatories, depositions and other mechanisms. Our civil justice system fosters out-of-court resolution of disputes. By exchanging factual information, feuding parties should be able to assess the relative strengths and weaknesses of their respective positions and hopefully come up with an amicable solution without going to trial. As such, answers to questions asked of the defendant surgeon must be honest, accurate, complete, forthright and without excessive detail. Answers should be tightly limited to the question asked and no more.
Lawrence H. Brenner
Information shared with the defense counsel is privileged and cannot ordinarily be shared with outside parties. Practice question-answer sessions with a trained attorney are worthwhile in anticipation of deposition testimony. The skill of artfully answering questions with an economy of words (and listening to questions) does not come naturally.
Defendant surgeons may want to hire personal counsel in addition to the defense lawyer appointed by the insurance carrier. Independent counsel can provide another source of legal advice and help peace of mind. Independent counsel also can address concerns about asset protection, extent of liability exposure, business or practice interests and other concerns related to the lawsuit. There may be value in engaging independent counsel when it comes to possible settlement of the dispute, where complex rules may dictate whether the insurance carrier and/or the surgeon has the right to consent to settlement.
Mechanics of lawsuit
When first meeting with the defense counsel, it is useful for the defendant surgeon to get a feel for respective personalities and chemistry as good defense is a team effort. The defendant should focus on the complaint filed with the court because that circumscribes the list of actual allegations. Unless amended, this document essentially describes the four corners of the lawsuit. Each allegation within the complaint must be formally answered by the defense counsel; a failure to timely do so can result in a default judgment in favor of the plaintiff. The defense counsel can help distill the defendant’s side of the story to factual answers that are filed with the court as a formal response to the lawsuit.
Once the formal answer to the complaint is filed, even if it denies all allegations, the system requires that each party use discovery, depositions, literature review and expert testimony to learn and understand the strengths and weaknesses of the other side. Therefore, a strong defense requires the defendant surgeon think about the most plausible theories to refute or negate the alleged complaints, investigate the literature and identify expert witnesses who will agree to review the record and testify in court. While an experienced defense counsel may be familiar with credible experts in the field and with basic principles of surgical management, there is no substitute for an active and engaged defendant.
Procedural steps
Several procedural steps may be taken by the defense counsel can be confusing and unsettling to the defendant. The defendant may receive copies of letters sent by the defense counsel to periodically update the insurance company on the progress of the lawsuit. Insurance representatives may sit in during depositions and related activities. If there are additional parties to the suit, such as a hospital, pharmacy, nursing home or implant manufacturer, then there may be a defense counsel from each party to attend depositions and raise objections for the record.
The plaintiff patient may be physically present at the deposition of the defendant surgeon. The defense counsel may send a letter indicating a willingness to settle the case; this may be a necessary procedural step for the defendant is to preserve certain legal rights down the road. Specifically, such a letter can bar the insurance company from suing the defendant after trial to recover monetary damages in excess of a settlement offer. These procedural steps do not mean the defense counsel has given up on the case. Communication can help defuse concerns arising out of legal steps that may be unfamiliar to surgeon defendants.
The defendant should know what factual information will be excluded from trial and/or depositions by virtue of defense motions filed with the court or by some other pretrial mechanisms. For example, a hospital may have instituted a politically charged disciplinary hearing against the defendant surgeon after the lawsuit with a favorable outcome for the defendant. The defense counsel, believing this information could bias a jury, may have successfully excluded it from trial or the information itself may be privileged from discovery. By volunteering this information with the misguided hope of bolstering his/her position, the defendant will inadvertently open the door to letting plaintiffs offer unfavorable details of the underlying matter to the jury in an attempt to discredit the surgeon.
The OR environment and well-defined procedures, such as sterile technique, discipline, time-out procedures and the like, offer a sense of control. Similarly, defense counsels are experts in their own arena and familiar with a different set of rules and nuances driven by tradition, policy and legal doctrines developed during centuries. Successful navigation through the dense legal environment needs careful listening on the part of the accused physician, understanding the process and contributing to the defense. For every good argument, there is always an equally good counter argument. By thinking the case through from the plaintiff’s side and going through the mental gymnastics of argument and counter argument, the defendant can understand the mechanics of the legal process. This exercise will also help the defendant surgeon maintain a professional demeanor during an otherwise difficult and emotionally taxing process. Juries want to believe the physician, and the burden of proof is upon the plaintiff.
Trial preparation
In our legal system, the work of lawyers is not to find the truth, but to provide the best advocacy for their clients under the circumstances. The trial of facts and determination of the truth are up to the jury, assuming the case gets to trial. How effectively a jury can find the truth is a function of advocacy and trial skills. A good defendant surgeon can help optimize these variables and influence the outcome of the case.
Trial preparation is arduous for the both the physician and counsel. For the physician, it is imperative he or she reads the testimony of all of the experts and physicians involved in the case to fully understand the nature of the theories of liability being asserted by plaintiff’s counsel. The defendant surgeon and defense counsel must work closely together to formulate the rebuttals against those theories and develop the defenses that will be offered at trial. Hopefully, the pointers offered here will help in navigating an otherwise difficult and arduous process that will be encountered by most orthopedic surgeons in practice.
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- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.