How to Channel Your Anger into Winning Your Claim

By Neal R. Reisman, MD, FACS, FACMQ, and Steven M. Gonzalez, JD

Digest, Fall, 1992

Many ophthalmologists are so outraged and hurt when they are served with a malpractice suit that they understandably do not want to get involved. They prefer to let their attorneys handle this “nuisance” alone. The ophthalmologist, increasingly irritated by the onslaught or requests for material and documents that must be provided in a timely fashion, often becomes further removed from the upcoming battle.

This is a mistake. The legal system allows for resolution of claims in a civilized fashion. It is a system within which the parties can work to resolve their disputes. Using this system to its fullest allows the defendant the greatest chance of winning and ending this ordeal.

The purpose of this article is to suggest how you can contribute to the defense and make the difference between winning and losing. There are important stages in any medical malpractice case, and at each juncture, you are best served by participating rather than withdrawing. Use your anger and energy to help your attorney win your case.

A medical malpractice suit begins with service of citation and court papers outlining the charges against you. Upon receipt of suit papers, you should contact OMIC or your malpractice carrier and provide the insurer with copies. Incredibly enough, some physicians stick suit papers in their desk drawer or otherwise fail to report the actual “service” to their malpractice carrier or attorney.

Failure to allow your insurer to timely respond by filing a denial in the form of an “Answer” can and does result in a default judgment on issues of liability and even dollar damages. You can therefore lose your case without even having the opportunity to present your side. Although default judgments are overturned for good cause, physicians subject themselves to considerable exposure by not taking suit papers seriously. Such actions may also jeopardize your insurance coverage.

Your Attorney

Soon after receiving notification of the lawsuit, OMIC or your carrier will assign a particular attorney to defend your case. That attorney may be familiar with ophthalmic malpractice cases but will not be a medical expert in this specialty. You also must recognize and accept that you are not an expert in law or in the courtroom.

The best thing you as a defendant ophthalmologist can do is immediately develop good rapport with your attorney and carrier so you can work together as a team, complementing each other.

The attorney-client relationship is much like the physician-patient relationship. All physicians have had demanding patients. Physicians do not look forward to seeing these patients or being subjected to their demands. Attorneys likewise do not appreciate being ordered around by their clients.

Try not to vent your anger toward the plaintiff’s counsel on your own attorney simply because they are both lawyers. The defense attorney usually does nothing but defend physicians and shares some amount of philosophical disdain for the plaintiff’s claims.

You also must recognize that your attorney’s time is just as valuable as your own. Each of you is an expert in your area, and you should work together toward resolving the suit. It is important to visit your attorney at his or her office. Just as you are limited in your ability to provide total care without all your tools at your disposal, an attorney is limited outside his or her own office. All of the details of your case, the lawyer’s support staff, and appropriate law references are available in his or her office. It soon becomes clear that your meetings will be more fruitful there.

The Preparation

Upon learning of defense counsel assignment, pick up the telephone and introduce yourself to your attorney. Get involved from the beginning. Gather and forward as much information on the patient as possible. That includes your office records, telephone message slips, telephone prescription refills, and anything else reflecting your past involvement with the plaintiff.

As depicted in the popular movie The Verdict, altering or destroying records can not only lose the case but can provide the basis for punitive awards. To this end, do not remove the hospital chart or records of other facilities. Allow your attorney to gather these records by agreement with opposing counsel or court subpoena.

The more your attorney knows about the medical issues the better. It is your job to educate him or her. Sit down with the medical chart, dictaphone in hand, and prepare a narrative of not only the events that took place, but also of the medical issues involved in your case.

For instance, if your case involves the failure to remove the nucleus from the vitreous cavity during an attempted phako procedure, begin your narrative by outlining the anatomy of the eye, the background development and purpose of the procedure, a step-by-step report of how the procedure is performed, and a justification for performing the procedure on this particular patient.

Next, there should be a chronological outline, including each and every office visit with the patient, leading up to hospitalization. Include a typed transcription of all illegible notes from your office chart or the hospital record.

Notes reflecting discussions with the patient or family, including warnings of possible complications, should be highlighted. When possible, reference should be made to the date and time of specific entries in the medical chart, documenting these warnings or any other important occurrence.

This information, called “work product,” is created by you solely for your attorney’s use. It is considered privileged and cannot be subpoenaed by opposing counsel. It should be shared with no one and should be kept in a safe place.

Do not leave copies of your work product lying around in the open. Many times, office staff will place anything related to a lawsuit in the particular patient’s office chart. Down the road, at depositions or even in court, physicians have been known to carry into court not only the patient chart, but also their work product and correspondence with their attorney, making it available to opposing counsel. A separate folder should be maintained for materials related to the lawsuit, including notes and correspondence between you, your attorney and your carrier.

Educate Counsel on Medical Issues

Once you have forwarded your defense narrative to your attorney, set up a meeting in his or her office. Most times, you will find that your attorney is more than willing to meet with you and spend as much time as desired explaining the legal process, the status of your case, and where he or she thinks your defense should be headed.

This is also an opportunity to educate your attorney, supplement your narrative and answer any questions your attorney may have concerning medical issues. Take a notepad, and begin a continuous sequence of notes for the entire case, including any instructions from your attorney. Be prepared to identify members of your staff, hospital personnel, pharmacies, and other people peripherally involved with your care of the plaintiff. Provide that information as soon as possible. If this is not done early, witnesses may disappear, and records of medications and the like may be destroyed by the time of trial.

Medical literature is a valuable weapon in the defense armamentarium. Start doing medical research into the area in question, but only with your attorney’s prior approval. Use all resources at your disposal to develop a library on the topic. As you know, medicine is filled with differing opinions. You can bet the plaintiff will find and use a different opinion from yours to attempt to prove that you deviated from the acceptable standard of care.

By preparing this library, you will soon learn who the “experts” are nationally and locally. Through your carrier and attorney, your defense team may find it necessary to consult one or more of these experts. You also may find that the plaintiff will hire one or more of these experts to testify against you. Many times, publications by the plaintiff’s expert can be used to discredit that expert, water down his or her opinions, and make him or her appear biased against you.

Throughout the handling of your case, you should keep abreast of the papers filed by the various parties, including answers to discovery (interrogatories, requests for production), deposition transcripts, and amended or supplemental allegations. Ask your carrier and attorney from the outset to place you on the copy list so you will routinely receive copies of this paperwork. Upon receipt, review these materials, and make notes for yourself and your attorney. Also, ask your attorney to copy you on the correspondence with the insurance carrier. That will keep you abreast of its evaluation of the case.

Depositions

Most malpractice defense lawyers will attempt to take the plaintiff’s deposition before offering their client for pretrial deposition, although this is not always possible. When the plaintiff or the plaintiff’s family is deposed, you should attend and assist your attorney with questioning.

Ask your attorney to notify you of all depositions, not only of the adverse parties, but of all co-defendant physicians and hospital personnel. Take the time to attend these depositions, and assist your attorney in preparation and questioning during the deposition.

Do not be discouraged by all the cancellations and rescheduling of these depositions. Explain to your staff how important your attendance is, and have them help you with your schedule adjustments.

There are pivotal turning points in any medical malpractice case. One of these is the defendant’s deposition. Make sure to allow yourself enough time for preparation. By now, you and your attorney should have a mutual understanding of the medical and legal issues of the case. You should be aware of the specific allegations against you. Defense attorneys typically have routine deposition advice for their clients. Schedule a meeting with your attorney several days in advance of the deposition. That will give you time to digest the content of the predeposition conference. Listen to the advice of your attorney. Take notes for study during the next few days before the deposition. If you have additional questions, write them down, and call your attorney.

It is important to go into the deposition with a clear mind and a firm understanding of your defense theories. Typical deposition issues include entries or the absence of entries in the medical chart, informed consent, authoritativeness of specific text or journal articles, the “hypothetical patient,” board certification, and applicable standards of care. You should be prepared to respond to these specific areas. Time with your attorney will offer you that opportunity.

Expert Depositions

The next critical step in pretrial discovery is expert depositions. The plaintiffs normally will have identified their experts weeks or even months before their depositions are taken. That gives you plenty of opportunity to gather any publications written by opposing experts and to sit down and help your attorney through this material.

When possible, the defendant ophthalmologist should personally attend the deposition of the plaintiff’s expert. Even though the so-called “expert” against you may be from out of town, it is important to take the time and expense to attend the deposition.

Research every article and writing of the plaintiff’s experts. Bring copies of the pertinent works with you to the deposition for cross-examination. You will be surprised how many times these “hired guns” soften when you are at the deposition, with their articles in hand, directly across the table. You also can help your attorney with follow-up questions based on answers given during the deposition. You can use your library of articles to prove your point. At worst, your attorney may be able to show that ophthalmologists often disagree and that accepted opinions may differ.

Your Experts

You are your own best expert. Unlike the plaintiff in a medical malpractice case, you have a distinct advantage of being able to testify to issues of negligence involving applicable standards of care, causation and damages, all of which are essential components of a malpractice case.

In a recent case, a defendant ophthalmologist offered compelling testimony as to the position and density of the plaintiff’s cataract prior to surgery, which only he could attest to. The plaintiff’s experts had never examined the plaintiff and were unable to rebut this testimony offered by the defendant ophthalmologist. The defendant ophthalmologist’s testimony was the only credible evidence on the preoperative condition of the eye. This is very often the case and the defendant should bear in mind this built-in advantage over the plaintiff’s experts who have often never seen the plaintiff.

To be an impressive expert, you must be well versed in the relevant literature. It is not wise to recognize any particular journal or article as completely authoritative, although medical literature can be used to support expert opinion.

It generally is not a good idea for you to contact experts who may eventually testify on your behalf. However, you should provide your attorney with the names of experienced colleagues who might be of help. It is not necessary to attend your own experts’ oral depositions. Transcripts can be made available. To avoid the appearance of bias, you should, to the extent possible, remain independent from these testifying experts. You can pass necessary information to your experts through your attorney.

The Trial

You and your attorney are now prepared for the ensuing battle. You know the area of controversy, both legal and medical. You are a true expert in the area in question. From the time suit papers were served through the trial, you have furthered your cause. You will be called upon to testify, and you now have the opportunity to defend yourself. You are the most important witness in the trial. Lawyers and judges do not win or lose medical malpractice cases; physicians win or lose their own cases. Be honest with yourself and your attorney. Critique your care, and consider the opposition’s side. List your weaknesses, and plan your response to each item. Try to develop a rebuttal to each of these points.

The stronger your case is through preparation and making the opposing expert “impotent,” the greater your chance the case will be either dropped or settled if the merits dictate. If the case does go to trial, you will be well prepared to defend your actions. Your demeanor in court and the mechanics of trial will be discussed by your attorney before jury selection.

Do not underestimate your ability not only to help your cause, but often to win your case by becoming involved. Channel your anger, hurt, frustration, resentment and energy into your case. Not only will this make you feel better, but you can and will make a difference.

(This article originally appeared in Anesthesia Malpractice Protector, November, 1989. It has been adapted and edited by the authors for publication in the Digest.)

The Role of the Expert Witness

 By Jerome W. Bettman Sr., MD

Digest, Fall, 1992

At some point during their professional life, many ophthalmologists are asked to serve as an expert witness, either on behalf of the plaintiff or the defendant. The function of an expert witness is to help define the standard of care as it pertains to the case under consideration and to render an opinion as to whether the care provided met this standard.

Legal standards of care are not necessarily what a majority do, but what a minority of acceptable ophthalmologists would do. The fact that the expert might not do it is not germane to his or her opinion.

Evaluating whether the care provided was substandard may be difficult. There are many gray areas and an expert witness should be cautious about stating that care was substandard because once this is indicated, the plaintiff’s attorney will not desist.

The expert is not rushed and has the advantage of being able to evaluate all aspects of the case in retrospection. The treating physician did not have this advantage. Errors in judgment do not constitute substandard care. However, if care was indeed substandard the expert must say so and be willing to testify to it.

The Discovery Process

It is essential that the expert be acquainted with certain fundamentals of giving a good deposition. The deposition is as important as the trial itself and often determines whether there will be a trial. The deposition is part of the discovery process and should be considered a continuous cross-examination conducted by the opposing attorney. The attorney is attempting to learn facts about the case and whether the care was substandard. The attorney also is determining what impression the expert witness will make on a jury, and laying the groundwork so it appears that the witness is contradicting him or herself when similar questions are asked in trial.

In light of this, it is essential that all answers be brief and to the point. A simple “yes” or “no” answer is often the best one. Be careful about “Yes, but….” and “No, and…” answers. What is said after the simple yes or no may cause problems later.

An expert should listen carefully to the question, answer it truthfully, and not amplify the answer. Compound questions should be broken up before answering. Do not hesitate to say “I don’t know.” Do not allow attorneys to put words in your mouth and thereby alter your intended meaning.

A Contest of Impressions

A trial is a contest of impressions. Juries are frequently faced by expert ophthalmologists on each side who give conflicting opinions. Expected to weigh one opinion against the other, juries must consider the relative qualifications and credibility of each expert and the basis for each opinion. Juries give great weight to the demeanor of witnesses and whether testimony is given in a logical, convincing manner.

An expert witness must meet certain ethical and legal requirements: expertise in the area of concern, honesty, impartiality, imperviousness to monetary considerations. Qualifications should be stated clearly but not arrogantly. The expert should dress and act conservatively, and speak to the jury as a kindly, helpful educator would speak to novices. Use both lay and scientific terminology. The former so the jury will understand it and the latter so the meaning is clear in the event of future disputes or retrials.

Listen carefully to the long hypothetical case that will be presented and attendant questions before answering. Do not agree unless you agree with every part of it. Do not hesitate to ask that it be repeated. Never get angry or argue with an attorney. Be truthful. Do not exaggerate or amplify.

Expert for the Plaintiff

Should an expert witness take cases for the plaintiff? There are several reasons why an expert who takes cases for the defendant also should accept them for the other side:1

• The vast majority of plaintiffs’ cases are without merit. An honest, knowledgeable expert can influence the plaintiffs’ attorney to drop these cases at an early stage, thereby saving time, money and emotional trauma.
• It adds to one’s credibility as an expert witness.
• It is only fair that each side obtains good advice.
• Dishonest witnesses are available if honest ones refuse.

Setting Fees

Expert witnesses typically charge for their time, effort and expenses involved in preparation for and during a trial. The fee charged may depend on the credentials and experience of the expert and may vary according to geographic area. Hourly rates are usually preferable to flat fees. Avoid having your compensation be contingent in any respect on the outcome of the litigation. Ask for advance payment from a plaintiff’s attorney who is not well known to you. Send an itemized bill of actual time and services rendered and expenses incurred once your service is completed.

For further guidance on serving as an expert witness, contact OMIC for copies of three statements on this subject published by the American Academy of Ophthalmology: Textbooks, Journal Articles and the Standard of Care; Expert Testimony by Ophthalmologists; and Some Suggestions for Determining Compensation for Expert Testimony by Ophthalmologists.

Notes:

1. Bettman JW. Problems of Conscience and Fact. Survey of Ophthalmol. Sept-Oct 1984;29(2):137.

Medical Board Investigations Should Not be Faced Alone

By Ryan Bucsi, Mr. Bucsi is a Senior Litigation Analyst with OMIC’s Claims Department.

Digest, Winter 2007

You would never attempt to represent yourself in a medical malpractice lawsuit and assume responsibility for taking all the necessary depositions, preparing your own trial exhibits, examining witnesses during trial, and convincing a jury that your care and treatment met the standard of care. You know that if you are faced with a malpractice complaint, your first course of action should be to call OMIC’s claims department so we can put you in touch with a defense attorney who will represent you throughout the course of litigation.

What you may not know is that OMIC is also here to defend you if you receive a letter of investigation from your state medical board regarding patient care you have rendered. Some insureds have failed to report these letters of investigation until after they have responded on their own. Unfortunately, when there is a significant delay in reporting the investigation to OMIC, the results can be as catastrophic as attempting to defend your own malpractice lawsuit.

For example, an OMIC insured received a letter of investigation from her state board requesting a complete copy of a patient’s chart. There was no request or requirement that the insured provide a written description or narrative of the patient’s care, just a request for the chart. Without contacting OMIC for advice, the insured not only sent the requested records to the medical board but also a detailed narrative outlining her treatment of the patient. The insured did not hear back from the medical board until a year later when she received a letter notifying her that the board had concluded its investigation and was bringing disciplinary charges against her.

In the year that passed between the request for the patient’s chart and the notification of disciplinary action, the state board had been busy retaining experts who testified that the insured’s care was indeed below the accepted standard. Based on this expert testimony, the board proposed the following disciplinary action against the insured: a fine in the thousands of dollars, reimbursement of the costs associated with the state board investigation, a letter of reprimand, community service, and continuing education.

It was at this point that the insured contacted OMIC for assistance. An attorney was assigned to represent her and experts were retained on her behalf. Unfortunately, the insured had put herself at a great disadvantage by directly responding to the medical board, and no facts that OMIC or defense counsel presented could persuade the board to reverse its decision or reduce the proposed penalties. In the process, the insured’s defense coverage limits for this investigation were exhausted. Had the insured contacted OMIC as soon as she received the initial letter of investigation, OMIC would have assigned legal counsel to assist her in writing a response, which could have improved her chances for a more favorable decision from the state board.

OMIC Policy Covers Defense of Medical Board Investigations

Most physicians are not properly trained to respond to medical board inquiries and investigations in a manner that benefits their position. The initial letter from a state medical board may seem like a harmless request for records or information on a patient; however, your initial response is vitally important and may determine whether the board proceeds with an investigation or dismisses the complaint. Significantly, medical board or licensure actions can result in suspension of your medical license, thus making these cases far more risky than a medical malpractice case.

Insureds should treat a notice of medical board investigation the same way they would treat a patient complaint letter or request for information from a plaintiff attorney and contact OMIC before responding. OMIC defense attorneys are experienced in dealing with medical board actions and oftentimes are familiar with the individuals in charge of the investigations. This type of firsthand experience is invaluable when preparing a response to a letter of investigation and may reduce the likelihood that the medical board will pursue the investigation further.

Coverage for state board investigations is included as a part of your OMIC policy: “OMIC shall defend any insured ophthalmologist…against any investigation, disciplinary proceeding, or action for review (hereinafter “investigation”) of the insured’s practice by any federal, state or local regulatory agency arising from a complaint or report by a patient to such an agency of an injury to that patient resulting from a professional services incident involving direct patient treatment provided by the insured. However, OMIC will have no liability for fines, sanctions, penalties, or other financial awards resulting from the investigation.”

Please note that OMIC provides defense coverage only and there is a limit to this coverage: “The most OMIC will pay per insured for the claim expenses for any one such investigation is $25,000. The most OMIC will pay per insured for claim expenses for all such investigations during the policy period or the extended reporting period will be $75,000.”

It has been OMIC’s experience that meeting or exceeding the $25,000 expense limit is rare. In OMIC’s history, only six cases have reached or exceeded the $25,000 coverage limit. In fact, in a review of 46 closed medical board cases, the average expense for these matters was roughly $5,000. The attorneys assigned by OMIC to handle these cases are aware of this limited defense coverage and have negotiated their hourly fees with OMIC accordingly. This gives OMIC insureds the best combination of experience and value as our attorneys will attempt to resolve the matter within policy limits, thus avoiding out-of-pocket defense expenses for the insured.

Patient Complaint Often Precedes Malpractice Claim

A patient complaint to the state medical board has all the attributes of a malpractice claim except that the patient is not demanding money from the insured. OMIC’s rationale for providing defense coverage for medical board investigations is that these cases are often precursors to impending legal actions. A patient who complains to an investigative entity is most likely unhappy with the insured’s care and might later decide to file a medical malpractice claim against the insured.

State medical boards have a duty and a right to investigate patient complaints. Even if the allegations seem frivolous and you do not personally have concerns about your care and treatment of the patient, it is still wise to refer the case to OMIC so an attorney can respond on your behalf. Any OMIC insured is susceptible to these types of complaints; however, the majority of cases historically come from a handful of states, notably Florida, Arizona, and Nevada. OMIC has also defended state board investigations in California, Colorado, Texas, Illinois, Massachusetts, Washington, and Virginia. Regardless of which state you practice in, if you receive a notice of a state board investigation, please contact OMIC immediately.

When OMIC is brought in to defend these investigations early on, it has an excellent history of resolving them without fines or penalties being levied against the insured. Of 46 closed cases involving medical board investigations, 39 were dismissed without any type of adverse outcome for the insured. In all but two of these 39 cases, OMIC had assigned legal counsel on behalf of the insured. In the two cases that went before the state board without legal representation, the insureds did not report the complaint to OMIC until after they had responded to the initial letter of investigation. In the seven cases with adverse outcomes, the insureds were fined anywhere from $1,000 to $10,000 in addition to the costs of the investigation. They also were required to perform hours of community service and undertake continuing medical education. The complaints in these seven cases pertained to wrong site surgery, wrong surgery performed, or incorrect implantation of intraocular lenses.

It is important to note that once disciplinary action has been taken by a state medical board, it reports the action to the federation of State Medical Boards and the National Practitioners Data Bank. Furthermore, the physician is required to report any such action to other states where he or she practices or has a medical license. OMIC recommends that insureds consult with their OMIC-appointed attorney regarding reporting requirements of state board actions.

In summary, the same type of caution that is applied to medical malpractice claims and lawsuits should be applied to state medical board investigations. Insureds should contact OMIC’s claims department as coverage for such occurrences exists within your OMIC policy. OMIC has experienced defense attorneys to assist insureds in responding to such inquiries. The goal of legal representation is to decrease the likelihood that an investigation will proceed past the initial stages and result in the levying of fines or disciplinary action against the insured.

State Medical Board Actions

As a matter of public policy, the practice of medicine is a privilege granted by the people of the state acting through their elected representatives. It is not a natural right of individuals. Therefore, each of the 50 states, the District of Columbia, and the U.S. territories has a medical practice act that defines the practice of medicine and delegates the authority to enforce the law to a state medical board. In most states, the board regulates both allopathic and osteopathic physicians; in others, separate boards exist. There are currently 70 state medical boards authorized to regulate physicians.

Some of the functions of a state medical board include licensing physicians, investigating complaints, disciplining those who violate the law, conducting physician evaluations, and facilitating rehabilitation of physicians where appropriate. State laws require that boards assure fairness and due process to any physician under investigation.

Although medical boards sometimes find it necessary to suspend or revoke a license to practice, regulators have found that many problems can be resolved with additional education or training in appropriate areas.

In other instances, it may be more appropriate to place a physician on probation or place restrictions on a physician’s license to practice. This compromise protects the public while maintaining a valuable community resource in the physician. Probation and restrictions on a medical license may be in place while a physician receives further training or rehabilitation.

If a state medical board determines that a violation has occurred, it may take any of the following actions:

Reprimand or Censure – Physician receives a public admonishment.

Administrative fine/Monetary Penalty – Physician must pay a civil penalty fee imposed by the board.

Restitution – Physician must reimburse a patient or entity for monies improperly earned.

Probation – Physician’s license is monitored for a period of time.

Limitation or Restriction – Physician’s license is restricted in some way (e.g., a physician may be prohibited from performing specific procedures or prescribing certain drugs).

Suspension – Physician may not practice for a period of time.

Summary Suspension – Physician’s license is suspended immediately based on evidence that the physician’s practice presents a threat to public health and safety.

Voluntary Surrender of License – Physician surrenders license to avoid further disciplinary action.

Denial – Physician is not granted a license to practice or license is not renewed.

Revocation – Physician’s license is terminated and physician can no longer practice medicine.

To find out more about your state medical board, go to the federation of State Medical Boards’ website at www.fsmb.org/index.html.

What Is Medical Malpractice?

By Joe R. McFarlane Jr., MD, JD, and Paul Weber, JD

Digest, Spring, 1993

You have just experienced a bad result. Perhaps the posterior capsule ruptured and the nucleus sank back into the vitreous, or the child with a previously esotropic eye awoke from muscle surgery with exotropia, or your patient had an expulsive hemorrhage or cardiac arrest during surgery. Have you committed medical malpractice? Not necessarily. A bad result in and of itself, does not constitute malpractice.

Four Elements of Negligence

When an ophthalmologist is sued for medical malpractice, the usual cause of action is negligence. Negligence is a tort, a private or civil wrong or injury resulting from breach of a legal duty that exists by virtue of society’s expectations regarding interpersonal conduct, rather than by contract or private relationship. The plaintiff has the burden of proof to establish four elements for a finding of negligence:

The existence of a legal duty to use due care owed by a defendant ophthalmologist to a patient;

I. Breach of that duty;

II. Causation;

III. Damage or injury to the patient.

IV. If one of these elements is not established by the plaintiff, a cause of action for negligence fails.

I. Legal Duty

In cases regarding alleged medical negligence, the legal duty of due care is established by the physician-patient relationship. The ophthalmologist usually establishes this relationship by rendering professional services to the patient. It is possible for a physician-patient relationship to be established without the patient ever being examined by the ophthalmologist. The most common instance is where an ophthalmologist gives advice or prescribes medication over the telephone.

A physician may be sued for malpractice even when direct patient care is not involved. For example, an ophthalmologist who shares night or weekend call with other ophthalmologists may be subject to a malpractice action for breach of the standard of care in selection of the covering ophthalmologist if the covering ophthalmologist should commit malpractice.

II. Breach of Duty

Once the existence of a legal duty is determined by the court or the jury, the next element the plaintiff must prove is breach of that legal duty of due care or breach of the standard of care. The standard of care in a medical negligence action requires that a physician exercise the degree of knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. The breach may be a failure to diagnose, delay in diagnosis, improper treatment, failure to obtain informed consent, and/or substandard care including substandard surgery. In performing professional services for treatment of the structure, function and diseases of the eye, an ophthalmologist will be held to the higher standard of care of a “medical specialist” based upon his or her specialized training. And, the “medical specialist” standard may be even further extended to subspecialties within ophthalmology.

For breach of the standard of care to be proven in a medical negligence action, generally there must be expert testimony from a physician in the same medical specialty and subspecialty as the defendant. Such testimony is necessary to establish the standard of care and whether or not the standard had been met. A general practitioner who performs the same procedure as an ophthalmologist is competent to testify as an expert against the ophthalmologist with respect to that particular procedure (e.g., giving a fluorescein stain to determine whether there are defects or abrasions on the cornea). Likewise, an ophthalmologist can testify against a general practitioner, but only with reference to the standard of care expected of a general practitioner.

In most courtroom situations, however, each side will want the best qualified expert in a particular specialty or subspecialty. And, the jury will be instructed to appraise the special knowledge, skill, experience, training and education of each expert witness when considering the testimony.

III. Causation

The third element to be satisfied for medical negligence is causation. Causation is sometimes further broken down into actual cause and proximate cause. Thus, if it is established that a breach in the standard of care occurred in a particular cataract operation, and later the patient has an unrelated central retinal vein occlusion, resulting in loss of vision, the element of actual causation would not be satisfied in that the injury of which the patient complained, the loss of vision, was not actually caused by the breach.

Likewise, an injury can be so remote from the breach that the ophthalmologist could not have “foreseen” it. The concept of proximate cause defies precise definition and has given courts and commentators much difficulty in that regard. An eminent legal scholar, Dean William Prosser, wrote:

“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.”1

For example, an ophthalmologist treats a 4-year-old boy with atropine drops in the right eye. The child develops an allergic reaction, an eczematoid rash around the eye. Due to itching and burning around the right eye, the child inadvertently scratches his left eye, causing a corneal abrasion. The right eye clears up, but the scratch in the left eye develops into a corneal ulcer. Complications lead to eventual loss of the left eye. Upon review of the medical record, it is discovered that the doctor failed to read the child’s prior medical history indicating a previous allergic reaction to atropine. At issue is whether the loss of the left eye was proximately caused by the ophthalmologist using contraindicated drops in the right eye, or whether loss of the left eye is too remote.

Proof of causation, like proof of breach of the standard of care, is usually established by expert testimony. An expert is generally necessary to establish the causal link between the injury complained of and the practitioner’s actions. There are exceptions to the requirement of expert testimony where causation may sometimes be inferred based on the so-called “common knowledge” of the jury.

Another exception to the requirement of expert testimony to prove breach of the standard care and causation is the doctrine of res ipsa loquitur, Latin for the thing speaks for itself. This is a rule of evidence whereby a presumption of negligence of the alleged wrongdoer may be inferred from the mere fact that the injury occurred, provided three conditions are met:

• It is the kind of thing that does not ordinarily happen without negligence;
• It must have been caused by an agency or instrumentality within the exclusive control of the defendant-ophthalmologist;
• It was not due to contribution or voluntary action by the plaintiff.

Some jurisdictions are relatively generous in allowing a plaintiff to apply the doctrine of res ipsa loquitur in medical negligence cases. This liberal application by the court requires the defendant-physician to explain the reason for the plaintiff’s injuries or suffer the penalty of an adverse finding in the absence of such explanation.2 For example, the doctrine of res ipsa loquitur would apply to a situation in which a patient wakes up in the post-anesthesia recovery room following cataract surgery with a broken ankle. In such a scenario, all three elements of res ipsa loquitur theoretically would be met.

In some cases, expert testimony still may be required to establish one of the elements necessary for the application of the res ipsa loquitur doctrine. For instance, in cases involving complex or rare medical procedures it may be necessary for an expert to testify that the injury or occurrence is the kind of thing that does not ordinarily happen without negligence, the first element of res ipsa loquitur.

IV. Damages

The fourth element the plaintiff must prove in a medical negligence case is damages. A patient must have been injured in some way by the breach of the standard of care for medical negligence to exist. The measure of damages is the amount that will compensate for the injury proximately caused by the defendant. These are called “compensatory damages” and are further subdivided into economic and non-economic damages. Possible economic damages might include lost wages and medical expenses (past, present and future). Non-economic damages are subjective and include pain, physical impairment, mental suffering, inconvenience, loss of society and companionship, and humiliation (past, present and future). In some jurisdictions, non-economic damages are limited by law in medical negligence cases; for example, in California non-economic damages may not exceed $250,000.

In certain jurisdictions, an injured patient’s spouse may claim damages for loss of consortium should the injury to the patient be severe enough. These damages include not only the loss of the spouse’s financial support, but also loss of the love, companionship, sexual relations and society of that spouse.

Affirmative Defenses

Even though a plaintiff may prove all four elements of negligence, a defendant-physician can raise defenses which may bar or diminish the plaintiff’s claims. One defense is the failure of the plaintiff to commence the action within the time limits set by statute in the jurisdiction where the case is being brought. This is referred to as the statute of limitations defense.

Another defense is that of contributory negligence or comparative negligence by the plaintiff. Contributory or comparative negligence is conduct by the plaintiff that falls below the standard expected of a person for self-protection. It is a legally contributing cause, in addition to the negligence of the defendant, in bringing about the plaintiff’s harm.3

The statute of limitations defense and the contributory negligence defense are referred to as affirmative defenses, and the defendant has the burden of proving the elements of each of these defenses. While negligence is by far the most common medical malpractice cause of action, other causes of action that may be asserted include battery (usually arising from lack of informed consent), abandonment, breach of contract, and misrepresentation (fraud). Each cause of action has elements that must be established before a plaintiff may recover money damages.

This article is intended to provide a general overview of negligence as it applies to medical malpractice. As it suggests, there are frequently no clear answers to the question “Have I committed malpractice?” Questions about bad results after treatment or untoward events should be directed to the claims representative or risk manager of your professional liability insurance company, or to an attorney experienced in medical malpractice. OMIC insureds are encouraged to call the OMIC office at 1-800-562-6642 and speak with Mary Kasher, claims manager, at extension 21 or Paul Weber, risk manager, at extension 15.

Notes:

1. Prosser, Keeton: Law of Torts (Fifth Edition).1984;7(41):264.
2. Levy, Golden, Sacks: California Torts. 1988.
3. Gifis SH: Law Dictionary (Second Edition). 1984.

The Psychological and Emotional Impact of Being Sued

By Jerome W. Bettman Sr., MD

Digest, Fall, 1993

You have just received a letter from a patient’s attorney informing you that a malpractice claim has been filed against you because of negligent care of the patient, which resulted in severe impairment. The letter suggests you contact the attorney’s office to work out a settlement.

It is not uncommon that the first notice of a claim against a physician is an intimidating letter from the patient’s attorney threatening a lawsuit while at the same time offering a settlement. It is the “iron hand in a velvet glove” approach and the opening move by plaintiff’s counsel to unhinge the physician psychologically and emotionally.

The Medical Malpractice Stress Syndrome

Like the above-described threatening letter from a patient’s attorney, much of what takes place during the course of litigation causes alarm, anger and anxiety, leading to what is commonly referred to as “the malpractice stress syndrome.” This syndrome is well recognized and has been documented by a number of researchers.1, 2

Over the course of a medical malpractice claim, it is not uncommon for a defendant physician to develop one or more symptoms related to this syndrome. These symptoms include: anger, inner tension, irritability, insomnia, anorexia, difficulty in concentration, negative self-image, feelings of being misunderstood, decreased self- confidence and decreased libido. Like most psychological maladies there is no cure for the syndrome, but steps can be taken to diminish and cope with the symptoms.

Take Positive Action

The first action to take when confronted with a claim or lawsuit should be reflexive: NOTIFY YOUR INSURANCE CARRIER AT ONCE. When you notify your carrier, you will be counseled by a claims professional who will be able to answer many of your questions regarding the claims process. An attorney will be assigned to your case who is experienced in defending medical malpractice lawsuits. The insurance carrier will advise you what to do and what not to do as a defendant-ophthalmologist. These admonishments may include:

• Do not speak to the plaintiff’s attorney, no matter how kind and cooperative he or she seems to be. Any contact must be between your attorney and the plaintiff’s attorney.
• Do not add to or alter your records no matter how tempting it may seem to do so, or how cleverly you think you can do it.
• Do not discuss the specifics of the case with anyone except your attorney.
• Do not look up relevant literature without the permission of your attorney. [However, if a review of literature is done at the request of your attorney and the two of you discuss it, the research may be cloaked in the attorney-client privilege. If your research is damaging to your case, it will not be discoverable by the other side or introduced at trial if the attorney-client privilege applies.]
• Do gather all the patient’s medical records and keep them in a safe place in your office.
• Do keep correspondence from your carrier in a separate file from the patient’s medical record.

Anger is a common reaction to a claim or lawsuit and a physician’s anger may spill over to the insurance carrier, the attorney and the court system as a whole.3  Do not permit anger to cause you to do things that could diminish your defense such as not reporting immediately to your insurance company, or not working closely with the attorney it provides.

One effective way to cope with the stress of a lawsuit is to take an active role in your own defense. This assumes a basic trust in your attorney and a willingness to take direction. Share all information about the case with your attorney no matter how bad it might seem. Your attorney can only prepare a defense against the negative aspects of the case by knowing what they are. Share your knowledge of the facts and educate your defense counsel about the clinical aspects of the case. Although your attorney may be well versed on many areas of medicine, ophthalmology claims are comparatively infrequent and some help in understanding eye diseases and treatment may be needed.

Your attorney will retain an expert in your defense; however, as the medical expert most knowledgeable about the care you gave the patient, you are an essential part of the defense team. Help your attorney understand the weak points and strong points of the medical matters in your particular case.

Facts About Medical Malpractice Lawsuits

The depression, worry and negative self-image that arise from the malpractice stress syndrome may be somewhat alleviated by the realization that a plaintiff’s claim does not mean the physician is a poor ophthalmologist. Claims are filed against one in six to one in eight doctors every year, the precise incidence varying with the jurisdiction. In some geographical areas, more than one out of every two physicians has been sued! Claims are filed against all types of practitioners. Internationally renowned ophthalmologists as well as department chairmen at major universities are sued. It is simply one of the hazards of practicing medicine.

Most claims against physicians do not result in a payment to the plaintiff and very rarely do the claims go to trial. Data from the Physician Insurers Association of America (PIAA, an organization of some 45 doctor-owned professional liability insurers) indicates that only 25% of claims against ophthalmologists result in an indemnity payment to the plaintiff and only 5% of these indemnity payments result from a trial. OMIC’s own data shows that only 22% of claims against its insureds result in an indemnity payment. Furthermore, a study of 976 medical malpractice lawsuits filed against physicians in New Jersey showed that juries found in favor of the physician in about 76% of the cases where there was a jury verdict.

Therefore, the physician who is sued should realize at the outset that the overwhelming majority of claims are resolved prior to trial in favor of the physician, and of those that do go to trial, the jury usually finds for the physician. Remember these facts when you awaken at 3 a.m. with visions of losing your possessions, or not being able to send your children to college.

An actual case in point may give you an idea of how overwhelming these feelings of hopelessness can be. The first trial of a defendant-ophthalmologist lasted for weeks before ending in a “hung” jury. A long period of time elapsed before the second trial during which the ophthalmologist obsessed about losing his practice, his good reputation, etc. The second trial ended in a verdict for this ophthalmologist, but he had worried so much about the possibility of “losing everything” that he wasn’t able to practice for several months.

Adjust Your Schedule and Activities

Initiation of a medical malpractice lawsuit by a patient may have a noticeable effect on the physician’s practice, resulting from a changed attitude toward patients. Avoid viewing patients as potential plaintiffs and continue to practice the best medicine you can as a caring and competent physician. Spend a few extra minutes with each patient to affirm the rapport necessary for a good doctor-patient interaction.

A study of 1,747 open and closed claims by the Physicians Insurance Company of Michigan showed an increased risk of a second litigation-producing incident within a year of receiving notice of the first claim. Due to the stress generated by a lawsuit, the defendant-physician might wish to reassess his or her work schedule and related activities. Temporarily decreasing one’s patient load or scaling back on practice hours may relieve the stress created by a lawsuit and free the physician to devote more effort to mounting a strong defense in the pending lawsuit. It also frees up time for family and friends, which is important during this stressful time. Involvement in non-practice-related activities such as teaching or a favorite hobby may increase one’s sense of self-worth and self-confidence.

During the course of a lawsuit, it is easy to become isolated or to self-medicate with drugs or alcohol. Avoid the temptation to do so. A substance abuse problem only makes dealing with the litigation process worse. It may be helpful to speak to a trusted colleague or friend in a general way about the claim and its effects. You may learn that your colleague also has been involved in a lawsuit and is willing to discuss the experience with you. However, be careful not to discuss the clinical facts of the case, or open up about your doubts and seek reassurance. During the discovery phase, you could be required to divulge all persons with whom you have discussed the case and your colleague may be required to testify about the doubts you divulged. Any such discussion held with colleagues in the presence of your attorney, on the other hand, cloaks what is said in the attorney-client privilege and protects it from discovery by the plaintiff’s counsel.

Conclusion

It is very likely you will have at least one lawsuit filed against you during your career. Remember to maintain a sense of perspective about the litigation process and realize that there are positive ways to cope with the malpractice stress syndrome. The guiding word when going through this crisis is Equanimity.

Notes:

1. Reading Reverend EG. The Malpractice Stress Syndrome. Maryland Medical Journal. March 1987:207.
2. Charles SC, et al. Physicians’ Self-Reports of Reactions to Malpractice Litigation. The American Journal of Psychiatry. 1984;141:563-565. [This study indicates that 96% of doctors experience some emotional reaction after being sued.]
3. Reisman NR and Gonzalez SM. How to Channel Your Anger into Winning Your Claim. Ophthalmic Risk Management Digest. 1992;2(4):3-5,8.