How to Survive A Malpractice Suit

By Paul Weber, JD

[Review of Ophthalmology, July 1997]

Unfortunately, chances are that at some point in your career you will be sued for malpractice. It is estimated that in a 35-year period, 95 percent of all ophthalmologists will be sued. In fact, during that time, the average ophthalmologist can expect 2.8 lawsuits, according to figures collected by the Ophthalmic Mutual Insurance Company. Approximately 54 percent will experience three or more claims in that time. Each year, you have an 8 percent chance of being sued. What’s more, a little more than half of all ophthalmologists will “lose” a suit in their lifetime; that is, their insurers and/or they will have to make at least one indemnity payment.

Lawsuits happen to all types of ophthalmologists – department chairmen, academics, specialists, the biggest names in the field. So be prepared when and if it happens to you. Be aware that there are things you can do to increase your chances of prevailing, and moreover, be aware that the vast majority of lawsuits and claims against ophthalmologists can be and are resolved without need of an indemnity payment.

In this article, I will explain a few ways of improving the outcome of a malpractice suit. I would suggest that, after reading it, you stash it away in a drawer for use when that rainy day arrives.

Your First Indication

Your first notice that you are going to be sued may come from any number of different directions. You may receive a request for records from an attorney representing a patient who had an unexpected complication during surgery. A patient may come right out and tell you. Or, the plaintiff’s attorney may send you a harsh, strongly worded letter. It will say that you acted in complete negligence and that the plaintiff’s attorney has experts who will testify under oath that you mistreated this patient in more ways than you thought possible. But toward the end, the letter may offer you a way out. A lawsuit can be avoided, it will say, if you contact the plaintiff’s attorney immediately and begin negotiating a cash settlement.

Don’t do it. Remember that anything you say to the plaintiff’s attorney can and probably will be used against you in the case. Instead of calling the patient’s attorney or doing anything else the letter suggests, call your malpractice insurer at once. Your insurer will assign you an attorney experienced in defending malpractice claims.

Do not contact the patient. Many physicians make the mistake of thinking they can talk the patient out of the claim. If the patient has gone to the trouble of hiring an attorney, it’s probably too late for discussion. It may be a hard notion to accept, but this patient whom you’ve been trying to help and whom you may have known for years has now become your adversary. Again, anything you say to the patient can be used against you.

Believe it or not, some patients will ask that you continue to treat them even after a malpractice suit has been initiated. With your defense attorney, carefully weigh the pros and cons of continuing to treat a patient who has sued you or who has threatened to sue you. Continuing to treat the patient may be a sign of good will on the part of the ophthalmologist. However, it may be difficult to treat someone who has alleged that you caused him or her harm and is now your legal adversary.

Personally, I believe continued treatment of the patient opens the door for more trouble. I suggest you calmly and politely inform the patient that due to the lawsuit it’s best to continue his or her treatment elsewhere. Give the patient several recommendations. If the ophthalmologists contact you, do not discuss any aspect of the legal proceedings with them. Restrict your discussion to the patient’s medical facts.

To initiate the legal process, the plaintiff must serve you with a Summons and Complaint. The service of these legal papers can be accomplished by a number of methods. Any documents received by you, your office staff, or at your residence are extremely important. Such documents should be preserved, and legible copies should be forwarded immediately to your malpractice insurer.

A few physicians make the fatal mistake of ignoring a Summons and Complaint, putting it in a desk, not mentioning it to anyone, and hoping the problem goes away. This is the worst thing you can do. If you do not respond to the complaint, the courts can and will make a default judgment against you regarding your liability and indemnity payment. This course of action also jeopardizes the coverage with your malpractice carrier, since most policies state you must notify your carrier after you are aware of a claim or lawsuit.

Before you dig into the reference books to justify your actions, get your attorney’s approval. That way, your research becomes cloaked under the attorney-client privilege. If you turn up something that might be used to suggest you committed negligence, you won’t have to divulge it to the opposition.

Let the Record Stand

Perhaps the most important “don’t” is this: Absolutely never under any circumstances make even the slightest change to a patient’s medical records if you have reason to suspect a claim or lawsuit might be filed against you. I can’t stress this point enough. Your intentions may be good – perhaps you simply wish to add details you neglected to add when you saw the patient. But don’t do it. Copies of these records are often made for insurance purposes. If these original copies turn up in the hands of the plaintiff’s attorneys, your case is all but sunk. It’s not uncommon for completely blameless physicians to end up with unfavorable outcomes in malpractice suits solely because they altered medical records.

One such case involved a patient scheduled for cataract surgery. The patient suffered a perforated globe during administration of a retrobulbar block by the anesthesiologist. When the ophthalmologist found out, he canceled the surgery. Because the ophthalmologist did nothing wrong, the defense attorney saw the case as very defensible. However, when it came to light that the MD had constructed a second set of clinical records after the suit had been filed, the case was resolved with a large indemnity payment.

Working with Your Attorney

The attorney-client relationship is very much like the patient-physician relationship in that it’s a two-way street. To successfully meet the challenge of a malpractice claim, you must work closely with your attorney. Why? Because you were the only expert who was present when the alleged malpractice took place. This gives your case a significant advantage, but it also calls for more work on your part. A few guidelines:

Complete honesty is very important. Make all the facts of the case available to your attorney no matter how damaging you think they may be. Even though the defense counsel is appointed by your insurance carrier, he or she is your attorney, not an attorney for the insurance carrier, and so owes a fiduciary duty to you. It is the attorney’s legal responsibility to act primarily for your benefit.

It’s also a good idea to sit down and teach your attorney the basics behind the procedure you performed on the plaintiff. Malpractice attorneys may be familiar with ophthalmology, but they are not experts, and you may have information that can help your case. Make time for your attorney. Listen carefully to his or her inquiries and advice, and incorporate those observations into your decision-making process.

Don’t take your anger out on your attorney. Often, frustrated physicians lash out at their own lawyer, weakening an important partnership. Your case is only as strong as your legal team. That includes both you and your attorney.

Ask to be placed on the “copy list” of both your attorney and insurance carrier so that you can see copies of all documents pertaining to your case. When you confer with your attorney, he or she will take notes, and you probably will too. These notes, plus other court documents and correspondence, make up what lawyers call “work product.” Do not put your work product in the same folder as the plaintiff’s medical records. Keep it in a separate folder in a safe place at your office. This way, when you bring the plaintiff’s medical records into the court or deposition room, your work product won’t be with you. There may be documents in the work product your attorney won’t want entered into evidence, and bringing them into court makes them available to the opposing counsel.

Provide your attorney with names of experts you think may help your case, but don’t contact these experts yourself. To avoid the appearance of bias, limit your contact with your experts as much as possible. Avoid speaking with them in the deposition room, or skip their depositions altogether.

However, join your attorney at depositions where experts will be testifying against you. This will help you better understand the case against you, and develop an effective rebuttal. You may also be able to explain medical facts to your attorney. The opposing experts may feel uncomfortable in your presence and may be reluctant to testify about vague or disputed facts.

Deposition Dos and Don’ts

A deposition is oral testimony given under oath but outside the court. The deposition process is a critical part of discovery; it provides the best opportunity to develop the factual framework underlying the case and the contentions and the legal issues to be confronted.

Here are some tips on how to give the best deposition possible:

• With your defense counsel, take time to prepare. You should be preparing for your deposition weeks or months in advance. Don’t leave anything until the last minute.
• Take your time responding. Wait about five full seconds before answering a question. This gives you time to think about your answer and it gives your attorney time to formulate objections. Realize you’re not simply speaking, but dictating a very permanent document.
• Don’t educate the examiner. It may be obvious to you that the examiner has no idea what he or she is talking about. Don’t try to help. Just answer the question as it is put to you. If you don’t understand the question, say so. But don’t say why.
• Beware of questions containing double negatives. This is an age-old trick attorneys use to get you to answer questions the way they want.
• Don’t be pressed into answering questions when you don’t know the answers. Often, the examiner will make it appear that only a fool wouldn’t know the answer to a question. Don’t allow this technique to seduce you into guessing at questions. Also, don’t add to your answers once you are finished. Your examiner may raise his or her eyebrows or make a “continue on” hand gesture. Simply sit quietly if you have nothing more to say.
• Don’t explain the reasoning behind your answers. If you remember a date because that’s the day you picked up dry cleaning for your spouse, don’t say so – just recount the date.
• Never qualify your testimony by starting sentences with “in all candor,” or “honestly,” or saying things like “I’m doing the best that I can.”
• Don’t reveal your feelings unless specifically asked. Never say something like: “I was feeling depressed that day,” or “I was in a very good mood that morning.”
• Don’t mention documents unless asked. If the examiner asks you a question and you don’t know the answer, but you know the answer exists on a document, don’t mention it. Simply say that you don’t recall. Do not produce documents if asked. Requests for documents should be made to your attorney.
• Watch every word you say from the moment you arrive in the deposition room. There’s no such thing as “off the record.” Remarks you make even before you are sworn in may come back to haunt you. If you need to tell your attorney something important, leave the room and go to a private place.
• If you’re hit with an important insight or memory during questioning, don’t blurt it out. Wait and discuss it with your attorney when the examiner is through.
• Don’t expect a perfect testimony. Depositions are not winner-take-all affairs. You’ll be forced to answer questions that hurt your case. You may even be caught in inconsistencies. Don’t fall to pieces. You’ll get a chance to state your side of the story when your attorney questions you.

You Are Your Own Best Witness

There’s a legal maxim that says: “Lawyers do not win or lose malpractice claims; physicians do.” There’s some truth to this saying. You were the only expert there at the time the patient was treated. You can testify to aspects of the case that no one else on earth can.

For example, in one case, a defendant ophthalmologist gave convincing testimony as to the position and density of the plaintiff’s cataract prior to surgery. The opposition’s experts had never seen the cataract and were unable to rebut his testimony. His was the only credible testimony as to the pre-operative condition of the eye. Remember, this is very often the case. In most cases, the opposition’s experts have never laid eyes on the plaintiff.

Your Emotional State

A claim is bound to cause some emotional and mental strain. In fact, this condition has been documented and dubbed “the malpractice stress syndrome.”¹ It can result in irritability, insomnia, anorexia, difficulty in concentration, decreased self-confidence and decreased libido. Often a physician believes the claim is a reflection on his or her ability to practice medicine. This is most often not the case at all. In fact, most malpractice suits have very little merit.

I believe surgeons’ anxiety results from the basic differences between medicine and law. In medicine, physicians learn from books and from experts who point out mistakes. Everyone works toward one goal: better treatment for patients. Law, on the other hand, is based on confrontation and competition. The goal of bringing a malpractice case is not to find the truth about what happened in the OR. The goal is to win a judgment for the plaintiff. When you see a procession of expert witnesses denouncing your care in deposition, it helps to remember this concept. It’s all part of the legal process.

If possible, it is probably best to lighten your patient load during particularly important times during litigation, such as depositions and court appearances. This will give you more time to deal with legal matters and also to relax and spend time with friends and family. Talk about your feelings with those close to you, but not about the facts of the case. If you do, those people may be called to testify. If you truly feel you need to speak to a colleague or a family member about the facts of the case, do it with your lawyer present. That way the communication is cloaked in attorney client privilege.

When you’re feeling especially anxious, console yourself with the knowledge that a minority of claims end in an indemnity payment, and fewer still go to trial. According to statistics from the Physician Insurers Association of America (PIAA), 30 percent of claims against ophthalmologists result in indemnity payments and only 5 percent of those payments result from a trial.

Settlement or Trial?

Deciding whether to settle the case or go on to trial depends in large part on the specifics of the case. In general, however, you should consider the advice of your counsel, the information that has been developed during the discovery, and the analysis of retained experts. The decision to settle is usually the result of a consensus achieved between you, your counsel and your malpractice insurer. Many malpractice insurers have a policy of not settling a claim simply to avoid litigation costs. However, a timely resolution can be the best course. The vast majority of cases are settled before trial.

Before agreeing to settle, all physicians should know that settlements are no longer private affairs. All settlements, even if they are very small, must be reported to the National Practitioner Data Bank, an organization set up by the federal government four or five years ago. The organization then makes the information available to hospitals and other organizations that are required to check on the records of individual physicians.

If your case should go to trial, be aware that your full participation is necessary. If you choose not to be present during the trial, it could be prejudicial to your case; the judge and/or jury may see your absence as a lack of interest.

Malpractice claims are a fact of medicine you will most likely have to confront at some point. Getting sued doesn’t mean you’re a bad ophthalmologist. But it does mean you’ll need to take the time and effort to face this challenge head-on. If you have faith in yourself, avoid panic, work closely with your attorney and concentrate on your deposition, chances are you’ll prevail.

Notes

1. Reading, Reverend, EG. The Malpractice Stress Syndrome.Maryland Medical Journal. March 1987:207.

Eyes, Lies and Malingerers

By Paul Weber, JD

[Digest, Fall 1998]

Litigants in an ophthalmic malpractice or personal injury lawsuit sometimes will feign illness or injury with the expectation that poorer vision will yield a higher monetary recovery. Generally, these malingerers are unsophisticated and feign complete loss of vision with no light perception. This can be easily verified or refuted through examination of the eye’s anatomy, pupillary reactions and other clinical findings of functional vision loss. Occasionally, however, a malingerer may elude detection and potentially wreak havoc on the medicolegal system. What follows is a case study of how one malingerer was able to deceive many reputable ophthalmologists and nearly triumph in her lawsuit against an OMIC insured.

Our story begins in May 1992 at a major university eye center where a 19-year-old woman was diagnosed with pars planitis. Visual acuity at the time was 20/30 OD and 20/40 OS. Over the next 18 months, VA dropped to 20/100 OD and 20/400 OS. In November 1993, the patient was given a single Kenalog injection in the inferior subtenons space of both eyes and referred to the OMIC insured, a retinologist.

The insured saw the patient on two occasions, in December 1993 and again in January 1994. At the first visit, her VA had dropped to 20/400 OU and IOP was 37 mmHg OD and 36 mmHg OS. The insured diagnosed pars planitis with uveitic cataracts and primary open angle glaucoma. He started the patient on Timoptic drops twice a day. By her second visit, pressures had decreased to 24 mmHg OD and 23 mmHg OS. However, the OMIC insured felt the patient’s tested VA was much worse than the physical findings seemed to warrant and he urged her to obtain an MRI and return for follow-up in three weeks. Subsequently, the patient married and moved out of state. She did not return for a follow-up exam with the insured and was not treated by another ophthalmologist until July 1994, by which time her condition had “apparently” worsened. After subsequent treatment, the patient was found to be legally blind. She sued the OMIC insured for failure to communicate to her the need for continuing follow-up care to treat the serious condition that led to her eventual blindness.

The facts and circumstances that doomed the successful defense of this case occurred when the patient called the insured’s office in March and again in April 1994 and each time renewed her Timoptic prescription. The insured advised the patient, through his staff, that she needed to be checked locally by another ophthalmologist since she had a serious condition that could lead to blindness, but he failed to document this in the chart.

Prior to trial, the judge granted summary judgment against the ophthalmologist on the issue of negligence based upon the insured’s own deposition testimony wherein he acknowledged a responsibility to communicate the importance of follow-up treatment and the “devastating” (insured’s own testimony) consequences if the patient did not receive direct care. This meant that the only issue to be decided by the jury at trial would be how much compensation to award the patient for her injury since, as a matter of law, the insured had now been found to have breached the standard of care.

The Plaintiff’s Case

Damages would be determined in large part by the testimony of the patient’s subsequent treating ophthalmologists, all experienced, well-qualified clinicians. There was the local ophthalmologist who examined the patient in July 1994 (six months after her last visit to the OMIC insured) and found VA of 20/400 OU; IOP 28 mmHg OD and 27 mmHg OS; and cup to disc ratio 0.2 OU. He diagnosed decreased visual acuity secondary to pars planitis with secondary glaucoma and referred her to a regional university eye center for evaluation (not the same one where she was seen in 1992).

Also supporting the plaintiff’s claim for damages was the university eye center that confirmed the local ophthalmologist’s diagnosis and performed a trabeculectomy on the left eye in August 1994. After maximal medical therapy, a trabeculectomy was performed on the right eye in November 1994 at another medical center. The ophthalmologists at this center also would testify in support of the plaintiff’s claim for damages. Following these surgeries, the records revealed VA of 20/400 OD and CF OS with cup to disc ratio of 0.4 OD and 0.8 OS. The patient was legally blind. These clinical findings and experts would present compelling evidence to a jury on the severity of the patient’s injury.

The plaintiff had begun receiving full disability payments from Social Security in 1994. By 1998, she had received over $68,000 in payments from the State Commission for the Blind for educational assistance at a local university. (It is interesting to note that the plaintiff’s mother was a counselor for the State Disability Board and was familiar with the parameters necessary to obtain disability payments.)

To provide support for a large jury verdict, the patient had a vocational rehabilitation expert ready to testify to the economic damages the plaintiff would suffer as a result of her disability. This expert’s report stated: “Because of damage to the optic nerve, she cannot drive, cannot read or watch television and requires assistance with most activities of daily living.” These damages included a lifetime earnings loss in the range of $250,000 to $1 million (even though the plaintiff’s last job was working as a fast food restaurant manager earning $25,000 per year) and “Life Care Needs” expenses, including a laptop computer with a speech program at a base cost of $3,000 and “companion services” at an annual cost of $29,000.

Just before trial, the plaintiff’s attorney made a demand to settle the case for $600,000. The analysis of the defense attorney and OMIC’s Claims Department was that the defense’s only hope was to attack the plaintiff’s credibility and show that her damages were inflated. The insured authorized OMIC to seek a settlement, but in fact, a counter-offer was never made and this patience eventually paid off for the insured and OMIC.

The Defendant’s Case

During the plaintiff’s deposition, the defense attorney took great care to pin the plaintiff down on her inability to see and to definitively describe her limitations. Specific reference was made to her inability to drive, even in emergency situations. The defense attorney then obtained the plaintiff’s driver’s license record, which noted 20/20 vision with corrective lenses. This license had been renewed in January 1995. The plaintiff had filled out the renewal form without assistance and was obviously able to read and sign the form with print that was clearly in the J2 range. Based upon this information, defense counsel requested and was granted a neuro-ophthalmic evaluation.

The neuro-ophthalmologist performed a complete neuro-ophthalmic examination that revealed best corrected VA of CF OU. However, the fundoscopic examination was significant in that he felt there was only a 0.1 cup to disc ratio OD and 0.2 cup to disc ratio OS when examined with a 90 diopter lens. Additionally, the rims of the optic nerve looked quite healthy with no evidence of optic atrophy. Because of these inconsistencies, a visual evoked potential was ordered and performed with the plaintiff’s cycloplegic refraction with an additional +1 diopter of correction to compensate for the 1-meter distance to the stimulus. The evoked potentials were completely normal with excellent N1 to P1 amplitudes with the smallest check sizes, consistent with a VA in the 20/20 range in each eye! The plaintiff’s airtight case was beginning to leak.

Immediately following the disclosure of these results at the deposition of the neuro-ophthalmologist, the plaintiff’s attorney requested visual evoked potentials to be performed at a university medical center where the plaintiff’s experts were employed. Their evaluation contradicted the defense test results and concluded that the patient saw no better than 20/200 in each eye. The defense neuro-ophthalmologist rebutted the test results and showed that the university’s visual evoked potentials were not performed in the same fashion, with cycloplegia, as the ones performed by the defense, thereby resulting in the different interpretations. The defense position was improving, but it remained an uphill battle.

The Great Pretender

The plaintiff’s claims were finally routed by the dogged investigation of defense counsel, which uncovered prior employment records that eventually led to interviews with past employers and co-workers and the disclosure that the plaintiff had unsuccessfully filed a Human Rights Commission discrimination claim under the Americans with Disabilities Act, alleging discrimination at her place of employment because of her visual disability. Her claim was denied based upon the visual acuity noted on her driver’s license, the fact that she was driving 60 miles round trip daily to her employment, and 24 witnesses who had seen her drive and/or fill out forms with fine print. These witnesses and the documentary evidence would completely demolish the vocational rehabilitation expert’s economic damages testimony at trial.

Finally, the plaintiff’s credibility would be ruined when a jury learned that her husband was pocketing the $840 a month she was receiving in disability payments for “readers” for her schoolwork. When confronted with the overwhelming evidence accumulated from these interviews and from the documentary evidence, the plaintiff and her counsel pleaded to withdraw the claim on the eve of trial. At the same time, there was an indication that the State Disability Commission might institute a claim against the plaintiff for fraud.

This case is instructive in a number of ways. First, it shows how difficult it can be to uncover certain malingerers when a definite clinical diagnosis of ocular pathology has been made and the patient is claiming vision loss in the 20/400 range. These patients require electrophysiological testing to evaluate the functioning of the visual system. In this patient’s case, the electroretinography, electrooculography and visual evoked potentials were all completely normal, which brought her complaints into question and pointed to the critical role of neuro-ophthalmology in defending this case.

Finally, this type of case reminds defense counsel and claims departments how important it is to use the necessary resources to follow up on every possible lead in a case. Often these leads go nowhere and cost a great deal of money. However, as this case demonstrates, it is money well spent when you can catch and send packing the ocular malingerer.

OMIC’s Trial Record Favors Ophthalmologists

By Paul Weber, JD
Mr. Weber is OMIC’s Risk Manager.

[Digest, Winter 2000]

Being sued for malpractice can be a shocking as well as depressing experience. When a lawsuit is served, an ophthalmologist’s worst fear is the threat of an adverse jury verdict. This fear of a public judgment is certainly understandable, but it is important to realize that most medical malpractice lawsuits never go to trial and adverse jury verdicts are rare.

Throughout OMIC’s 12-year history, insureds have been served with over 650 lawsuits, 464 of which have closed. The OMIC insured prevailed in 326 of these closed suits, including 32 defense verdicts out of 41 jury trials, a 78% trial win record. Eight of the jury trials resulted in a plaintiff verdict, approximately 2% of all closed lawsuits filed against OMIC insureds since 1987.¹

More than 40% of OMIC cases that went to trial, as well as one-third of all closed claims, were related to the treatment of cataracts. This is due, in part, to the high number of cataract surgeries performed each year by ophthalmologists (approximately 1.6 million based on 1994 HCFA data). Furthermore, the cataract patient is at risk of incurring an injury before, during, and after the procedure. For example, three cataract patients filed suits against OMIC insureds for improper administration of retrobulbar anesthesia and five others alleged substandard postoperative care resulting in failure to diagnose endophthalmitis.

Other trials resulted from lawsuits arising from patient office exams (8), retinal procedures (6), oculoplastic procedures (3), minor procedures (2), and “other” surgeries (5), including RK, glaucoma, muscle exploratory and biopsy, corneal transplant, and strabismus.

The majority of OMIC insureds whose cases go to trial are general ophthalmologists, not surprising given the fact that general ophthalmologists represent the largest segment of OMIC insureds. Other insureds with a different practice focus that OMIC has represented at trial include cataract/IOL, vitreoretinal, oculoplastics, cornea, pediatric, and glaucoma. Twenty-four trials involved allegations of improper performance of surgery, while alleged failure to diagnose and delayed or wrong diagnosis accounted for twelve trials. The remaining five trials resulted from allegations of delay in performance of surgery, failure to refer, unnecessary surgery, and failure to monitor or treat.

Severity and Damages

Plaintiff attorneys prefer to represent clients who have suffered a significant loss of vision or other catastrophic injury because they are more likely to stir jury sympathy and drive up awards. Severity by itself, however, does not determine whether a case is settled or goes to trial. OMIC has tried cases where the injury was truly catastrophic and won. One such case, brought on behalf of a bilaterally blind baby, had strong jury sympathy and high exposure to potentially large damages. Nevertheless, OMIC felt the case was defensible and won at trial thanks to good documentation, strong expert witnesses, and the credibility of the insured ophthalmologist.

That said, OMIC’s trial data does suggest a relation between the extent of the injury and the dollar amount awarded by a jury. In five of the eight plaintiff verdicts, the patient’s final vision was count fingers or worse and the average award was $452,000. In the three cases where the patient’s final vision was less catastrophic (20/60, 20/40, and reduced range of motion/diplopia), the average award was $283,000.

Trial Costs

The average lawsuit costs approximately $17,887 to defend. Lawsuits that go to trial cost an average of $83,267. A number of factors influence the cost of a trial: type of case, venue, defense counsel, and number of experts and other witnesses who will testify. Defense attorney fees are generally the most expensive item in a case and will rise according to the complexity of the case and the number of expert witnesses and subsequent treating physicians involved, which can be significant in a medical malpractice case. Economists, psychologists, and rehabilitation experts also may be called as witnesses – sometimes from out of state – and each must be paid for their time and travel expenses. In some jurisdictions, the defense must reimburse hourly or half-day fees when deposing plaintiff’s experts and subsequent treating physicians. A case with multiple experts and treating physicians, such as the one involving the bilaterally blind baby, can become quite expensive, although it is money well spent if it averts an even costlier plaintiff verdict.

Settlement or Trial?

The decision to settle or try a case is reached by consensus between the insured, defense counsel, and OMIC and is based on the advice of counsel, information developed during discovery, and the case analysis by retained experts. OMIC never settles a case without first seeking the insured’s consent, but before taking a case to trial, the defense team must believe the insured has a reasonable probability of prevailing. Several factors influence this decision:

Venue. How have juries in this particular county or geographical location decided similar cases? How high or low are the awards when a defendant loses?

Pretrial discovery. Do the medical records and other facts and evidence support the defendant’s course of treatment?

Analysis of expert witnesses. What are the strengths and weaknesses of the insured’s case?

Sympathy for the plaintiff. Is this a severely injured pediatric patient or a bilaterally blind head of household?

Strength of key witnesses. Will the plaintiff make a good impression on the jury? Is the insured able to withstand tough cross-examination?

There have been some instances where OMIC deemed a case to be defensible, but the insured wanted to settle. Sometimes an insured fears that personal assets will be exposed if there is a verdict above policy limits. Other times there is fear of exposure at a public trial and possible loss of reputation in the community. While these fears are reasonable, they should not be the deciding factors in whether to settle or go to trial. If a case does proceed to trial, OMIC’s defense team will work closely with the insured to build the confidence and skills needed to make an effective witness. Insureds also can participate in OMIC’s physician support network where they can confidentially discuss their anxieties and concerns related to their lawsuit with colleagues who have been through the litigation process themselves.

While every lawsuit and trial is unique, OMIC’s access to the educational resources of the American Academy of Ophthalmology and its own experience gleaned from hundreds of ophthalmic claims ensures the best possible defense available to ophthalmologists.

Notes:

1. Only lawsuits were reviewed for this article. It should be noted that as of year-end 1999, OMIC insureds had incurred a total of 1,124 claims and lawsuits. Approximately 630 (77%) of these claims and lawsuits were closed with no indemnity payment to the plaintiff. Claims occur when no formal lawsuit is filed but the patient (or representative) demands money for alleged injuries arising from professional services.

Choosing Defense Counsel

By Mary Kasher, MSN, JD
OMIC Claims Manager

[Digest, Winter 2001]

You have just been sued for malpractice. Who would you want as your defense attorney through the legal quagmire that is sure to follow? Would you look for the attorney with the best win record? The one who practices at the biggest and best known law firm in town? The one with the most courtroom experience? Charisma and eloquence?

All of these factors should be taken into consideration when looking for the most qualified attorney for your case. In addition, OMIC has a few more requirements before an attorney can become part of our defense panel and ultimately your attorney. As in many professions, the legal profession is divided into specialty areas, each of which defines a specific scope of expertise; for example, there’s insurance defense, workers’ compensation, corporations, mergers and acquisitions, real estate, and of course, medical malpractice. It is important that an attorney be selected whose primary focus and experience is in medical malpractice.

Prior Ophthalmology Experience
OMIC chooses its defense counsel very carefully. First, we look or defense counsel with strong medical malpractice litigation references from the local legal and insurance defense community. All OMIC cases are assigned to a senior partner with at least 10 years of medical malpractice trial experience. The partner directly assigned to the case must have ophthalmology case experience and, in most instances, have taken ophthalmology cases to trial.

The first phase of any medical malpractice case is to determine the insured’s potential liability and what part he or she played in the overall medical care picture of the plaintiff-patient. The ability of defense counsel to understand ophthalmology at this fact-finding stage is crucial because it is at this stage that the ultimate direction of the case is determined. For example, if counsel already understands what cataract surgery entails and knows its potential complications, it will be much easier to spot the issues and categorize them according to impact. This is why OMIC makes every effort to locate attorneys with ophthalmology experience an then continues to educate and groom them in the language and application of ophthalmology. Each time an OMIC attorney handles an OMIC case, his or her knowledge base grows and the attorney becomes more effective in managing OMIC cases.

OMIC has developed Ophthalmology Learning Modules for attorneys in several subspecialties, including cataracts, cornea, glaucoma, endophthalmitis, oculoplastics, vitreoretinal, ROP, and ophthalmic anesthesia. These modules and literature searches through the archives of the American Academy of Ophthalmology and other resources provide attorneys with the necessary background information to understand and focus on the primary clinical issues presented in each case. The insured ophthalmologist also plays a large role in educating defense counsel in the specific medicine involved in his or her case and continues to assist and analyze the issues as the case progresses.

In the initial stage of a claim, the defense counsel’s reputation in the community is extremely important, particularly when OMIC is trying to resolve the case with the plaintiff’s attorney and avoid going to trial. It has been OMIC’s experience that plaintiff attorneys are more willing to listen to and negotiate with the defense team when it is presented by a law firm known for its ability to win at trial. It is also good strategy for the OMIC Claims staff to team up with defense counsel to present a strong united front when trying to dissuade the plaintiff from pursuing a nonmeritorious claim.

Strong Courtroom Presence
Approximately 95% of malpractice cases never go to trial; however, should your case get that far, you will need an experienced and skilled attorney to represent you. It is important for a trial attorney to be able to relate to and develop a rapport with both the judge and jury. The attorney must be sufficiently conversant with the clinical facts of the case to present them clearly and succinctly to twelve lay individuals who may not have any medical background. Often, the attorney must walk a tightrope when explaining complex medical concepts to jurors to avoid talking over their heads without being condescending. It takes years of practice to develop this skill and to be able to successfully maneuver a case through a trial. Unexpected delays or continuances, surprise witnesses, sympathetic plaintiffs, and ever-menacing plaintiff attorneys can sabotage the most carefully prepared case at any moment. A skilled leader is absolutely essential at the helm.

Defending a medical malpractice case requires a team effort and the combined skills and experience of defense counsel, the OMIC Claims Committee and staff, and the insured ophthalmologist to develop and carry out a winning strategy.

Anatomy of a Claim

By Marilys Fernandez, RN, Esq., Digest, Winter, 1991

Medical malpractice claims are expensive, time consuming and emotionally trying for the physician involved. They often call into question not only the physician’s medical skill but his or her integrity as well. It is at this point when the physician may be feeling angry, confused and most in need of support that the benefits of a physician-sponsored company such as OMIC are most apparent.

Streamlining the Claims Process

The claims management system of the Ophthalmic Mutual Insurance Company (OMIC) typically cuts through the red tape and streamlines what could otherwise be a frustrating and stressful adversarial process. The result is a more responsive, personalized system designed not just to provide competent legal defense, but to reduce the anxiety and alienation that accompany a malpractice action. Realizing that open communication with the insured is a key element in successfully managing a case, the claims staff strives to keep the policyholder involved and informed frequently throughout the entire claims process.

The claims management philosophy is consistent with the origin and purpose of OMIC’s creation – to provide long-term insurance stability and personal attention to insured members of the Academy in an unstable medical-legal environment. OMIC is the only professional liability insurer exclusively for ophthalmologists and the only one sponsored by the American Academy of Ophthalmology for its members. OMIC’s Board of Directors are all practicing ophthalmologists and members of the Academy.

Reporting a Claim

The action taken when a physician first learns of an untoward medical event can be a critical factor in avoiding, reducing exposure or successfully defending a claim. An OMIC insured should immediately report a claim or potential claim by calling a toll-free OMIC number: 1-800-562-6642. The ophthalmologist will be asked to give a brief description of the incident to the claims staff who will then explain the claims process and provide further instructions on how to proceed.

Once insurance coverage is confirmed and a formal claims file is created, the physician is typically next asked to forward a copy of the patient’s medical records and any other information regarding care and treatment of the patient. Instructions will be given at that time with respect to patient confidentiality and the appropriate release of records. The claims manager may conduct a detailed interview over the telephone or, in some instances, assign the case to a local adjuster to set up a personal meeting with the insured.

It may be necessary for the claims manager to communicate directly with the claimant or claimant’s attorney to request additional information regarding the nature of the injury and damages allegedly sustained by the claimant. This may include supplementary medical records, x-rays or reports from other physicians who subsequently treated the patient.

Physician Reviewers

After the initial claims investigation, an ophthalmologist from the OMIC Claims Committee reviews and evaluates all the records. This reviewer attempts to provide an objective review of the strengths and weaknesses of the medical care rendered. OMIC reviewers, who like all OMIC insureds are members of the American Academy of Ophthalmology, represent various ophthalmic subspecialties and are assigned to cases that closely match their own expertise.

To Settle or Not to Settle

Once the investigation is completed, OMIC evaluates the claim, confers with the insured and makes a preliminary determination on how to proceed. If in the Company’s assessment of liability, the case appears defensible, the claim will be denied. If, on the other hand, it is believed that the insured is likely to be found liable, settling the case out of court may be recommended. However, consent from the insured is required before any claim is settled, pursuant to the terms of the OMIC insurance policy.

OMIC’s philosophy is to vigorously defend cases in which the insured has rendered appropriate care. Nuisance or so-called economic settlements only encourage frivolous litigation. On the other hand, if it is in the best interest of the insured to settle and the insured agrees, a prompt settlement will be attempted. However, since facts develop as a case proceeds, settlement of a case can occur anytime during the litigation or pre-litigation process: during the discovery phase, prior to trial, during trial or after trial.

Selection of Defense Counsel

Oftentimes, the first notice of a claim is the filing of a lawsuit by the plaintiff and the service of a Summons and Complaint on the physician. When this happens, the Company will retain counsel to render a defense on behalf of the OMIC insured. Counsel is chosen from a pre-approved list of attorneys with particular expertise in defending medical malpractice ophthalmology cases. This special panel of defense attorneys is likewise committed to aggressively defending all malpractice actions which the company believes could be resolved in the physician’s favor.

OMIC is also committed to the principle that the defense counsel’s client is the insured ophthalmologist and not the insurance company. Accordingly, defense counsel is expected to act responsibly and in the best interest of the insured physician. This includes keeping the insured involved in all aspects of the litigation, significant case developments and expert selection. The appointed attorney conducts all meaningful discovery, confers with the Company and the insured on defense strategy, and ultimately defends the case for those claims which proceed to litigation.

The Company takes great care when advising a physician about the ramifications of any settlement. Due to the reporting requirements of the National Practitioner Data Bank (NPDB), the claims manager reviews any report on claims payment with the physician before filing it with the NPDB.

After Claims Closure

The claims department’s job is not finished once a claim or lawsuit is brought to a final resolution. Data gathered from each claim is codified so information may be compiled on claim frequency and practice errors as they apply to ophthalmologists. This information is used by OMIC in its loss prevention efforts and risk management services.

The effective resolution of a claim can only be achieved by frequent communication between the policyholder, the claims manager and the attorney. In the spirit of this philosophy, OMIC will continually work to evaluate and improve the claims management process so that it remains responsive to the evolving needs of OMIC-insured ophthalmologists and members of the Academy.