Choice of law agreement between TX physicians and NM patients

Some of OMIC’s insureds practice near the border of New Mexico and see patients from that state. The Texas Tort Claims Act (TTCA) generally provides broader protections than the New Mexico Tort Claims Act (NMTCA) to physicians sued for medical professional liability. Many Texas health care providers were considering refusing to see New Mexico residents if they would not be protected by the TTCA in a lawsuit arising from their care of New Mexico patients. In order to protect its citizens’ access to care, the New Mexico legislature passed a law to enforce choice of law and forum selection provisions in agreements between New Mexico patients and out-of-state health care providers.

If you want claims and civil actions brought against you by New Mexico patients to be brought in Texas and governed by Texas law, you must have a written agreement with the patient that contains Texas choice of law and choice of forum provisions.

We have prepared two documents for you to use. Please click on the name of the document to download it:

•  SAMPLE GOVERNING LAW AND FORUM AGREEMENT.
• Here is a sample letter explaining the agreement to patients: Texas New Mexico PATIENT LETTER.

If you are considering the use of such an agreement, you should seek your attorney’s advice on the exact form of the agreement, its language, and who should sign it, as well as the language in the cover letter.

Wrongful Death Claims: Tragic, Complex, and Expensive

Paul Weber, JD, OMIC Vice President of Risk Management/Legal

Digest, Summer 2012

Wrongful death claims are some of the most tragic, complex, and expensive malpractice litigation that OMIC handles. They are tragic because a grieving spouse or, perhaps, a bereft parent, claims the insured’s negligence actually caused the death of their loved one. These lawsuits are legally complex because they usually involve multiple plaintiffs (family members) suing multiple defendants who are alleged to have caused or contributed to the death of the loved one. In wrongful death cases against physicians, the plaintiff must still prove all the elements of a medical negligence case, i.e., duty, breach, causation, and damages. These cases can become very expensive, very quickly, as numerous expert witnesses are retained by both sides to prove or disprove whose negligence, if any, caused the patient’s death.

Lending to the complexity of these lawsuits, almost all states have statutes that actually provide for two types of legal actions, often combined in one lawsuit, that may be brought against a physician who allegedly has caused the death of a patient. One action is a claim for wrongful death and the other is a survivor or survival action. The wrongful death action is brought by close family members (e.g., spouse, parent, child) to recover damages for loss of value of the decedent’s future earnings/contributions and personal services, loss of the decedent’s society and companionship, and pain and suffering arising from the death of the patient. A survival action (somewhat misnamed, since it is only available after someone has died) is pursued by the estate of the deceased patient to recover damages sustained by the decedent prior to death, such as medical expenses, loss of earnings, and pain and suffering. As stated above, the two actions are often combined into what will be referred to in this article as a “wrongful death” claim.

Wrongful death claims are relatively rare against ophthalmologists. They account for only 2.4% of all claims against OMIC insureds and 2.6% of claims against ophthalmologists in the Physician Insurers Association of America Data Sharing Project1 database. This relatively small percentage is quite notable because over 24% of claims against all specialties combined in the PIAA database involved the death of the patient. The vast majority of death-related claims in the PIAA database arise from pregnancy, malignant neoplasms of the female breast, symptoms involving the abdomen/pelvis, and acute myocardial infarct—conditions that seldom involve ophthalmologists.

There is little difference, however, in the average indemnity payment in wrongful death cases. According to the PIAA data, the average is $236,000 for ophthalmologists and $243,000 for all specialties combined. OMIC’s average indemnity for a wrongful death claim is somewhat higher than PIAA’s at $295,000 and is nearly twice the $156,000 average for OMIC’s non-death-related claims.

The two most frequent—and expensive—allegations against ophthalmologists in wrongful death lawsuits are improper performance of treatment or procedure and failure to diagnose (see Frequency and Severity chart below). This issue’s Closed Claim Study and Risk Management Hotline provide helpful risk management suggestions to minimize liability risk related to improper performance of surgery/procedure and related emergencies that occur in the hospital, ASC, or office procedure area. Wrongful death cases related to diagnostic error are quite different and frequently involve many providers, often over an extended period of time. In diagnostic-related cases, good documentation and communication among providers is often the best risk management practice to minimize adverse outcomes and the best defense if a lawsuit arises.

Case Study 1—Failure to Diagnose

One OMIC wrongful death lawsuit alleging diagnostic error involved an insured who saw the patient for complaints of swelling OU on January 2, 1995. The differential diagnosis was post-herpetic neuralgia versus sinusitis. The insured ordered a CT scan, which showed probable orbital lymphoma, and consulted with an oncologist and ENT specialist. Upon review of the CT scan, there was a discussion between the oncologist and ENT specialist about whether to get a biopsy. The patient was referred to a radiation oncologist, who began treatment of the left orbit and paranasal sinuses for presumed lymphoma without taking a biopsy. Although the insured testified that he was not involved in the decision to treat the mass or take a biopsy, the records and testimony of the ENT specialist and radiation oncologist indicated they had such conversations with him. The first oncologist had no specific recollection of any conversation with the insured regarding taking a biopsy.

On January 18, one week after radiation treatment started, the patient complained of swelling OU and was treated with prednisone and Tylenol. These symptoms were believed to be due to the radiation treatments. At a visit with the insured one month later on February 15, swelling was down, the eyes were quiet, and visually acuity was 20/20 OS. On February 28, when the patient was seen again by the insured, visual acuity in the left eye had decreased to 20/50 OS. The insured consulted with the oncologist; based on the CT scan, it appeared the lymphoma had regressed from the radiation. The patient was continued on steroids and warm compresses. On March 16, when the patient was seen again, swelling on the left side had increased, IOP was 38, and visual acuity was 20/80 OS. Again, the insured consulted the oncologist and adjusted the oral steroid dose. Two days later, swelling had decreased and IOP was 12 OS.

On April 1, the patient returned to the insured with reduced vision to light perception only OS. The left pupil was 4 mm and fixed. On April 2, a biopsy was taken using the transethmoidal approach and the patient was diagnosed with a fungal (Aspergillus) infection. The insured removed the patient’s left eye to help with treatment of the fungal infection. The patient died on May 21. An autopsy was conducted and the cause of death was listed as an Aspergillus infection. The fungus infection had caused the hematoma in the left frontal lobe, leading to cerebral edema and uncal herniation. There was no evidence of lymphoma at autopsy. The pathologist estimated the Aspergillus had been present in the cranial cavity anywhere from days to weeks.

The plaintiffs in this case were the widow of the patient and two adult children. They brought a wrongful death lawsuit against the insured, the oncologist, the radiation oncologist, and the ENT specialist. The plaintiffs’ theory was that the Aspergillus infection was present in January or February and should have been diagnosed via biopsy and treated at that time. The plaintiff experts testified that had a correct and timely diagnosis been made, the patient would have survived the Aspergillus infection. The plaintiff retained eight expert witnesses. The defendants hired a similar number of experts.

The key expert witness for the insured was a nationally recognized oculoplastics surgeon. He believed the clinical symptoms encountered were consistent with orbital lymphoma, as opposed to a fungal type infection. He felt the patient would have developed a fever in January if a fungus infection had been present at that time. The oral steroid treatment in March caused the periorbital edema to subside, but the steroids would have made the infection worse if it was present at that time. Therefore, it seemed probable to the defense expert that the patient did not develop the fungal infection until sometime in April.

There were some problems facing the insured’s defense. The differing recollections regarding the January decision not to do a biopsy and the insured’s lack of documentation regarding his exact role in treatment of the lymphoma weakened his case by linking him more closely to the plaintiffs’ main liability theory that a biopsy should have been done. Another weak point in the defense was that the insured had the most contact with the plaintiff from January through April. The plaintiff expert argued that the insured continued to treat the patient despite getting poor results rather than refer him to another specialist. The defense thought this was a specious argument as the insured had consulted with the oncologist but believed it might be persuasive to a jury. Moreover, because the case would be tried in a very “plaintiff-friendly” venue, defense counsel put the plaintiffs’ chances of prevailing at trial at 50% and estimated that a plaintiff verdict would range from $1,000,000 to $2,500,000. Other defense attorneys suggested it could go as high as $8,000,000.

OMIC had spent over $180,000 working up the case for trial and had a very experienced defense attorney with an excellent understanding of the clinical issues in the case. However, the consensus of the insured, defense counsel, and OMIC staff was that the clinical issues in this particular case were quite complex, and it was too risky to rely on a jury to understand the roles and duties of the multiple providers. It was felt that they would all be tarred with the same brush. With the insured’s consent, OMIC paid $250,000 to settle the case. The total combined payment from all defendants was $1,300,000.

Case Study 2—Failure to Diagnose

The most frequent type of treatment/procedure arising in a wrongful death claim is the “medical evaluation” and the most frequent type of practice focus is “comprehensive ophthalmologist.” One diagnostic error case against a comprehensive ophthalmologist performing a medical evaluation involved a 42-year-old man first seen by the insured in May 1997 for vision problems. He had been examined in November 1996 by another ophthalmologist, who performed a visual field test that was diagnostic for glaucoma. The patient was placed on medication. In May 1997, the patient’s primary care physician referred him to the insured, who diagnosed bilateral pterygia. The insured also performed a visual field test in July 1997 but made no notations regarding his impressions or any differences between his fields and those taken by the earlier ophthalmologist, despite having those records available to him. In October 1997, the insured removed the pterygia. Two and a half months after this surgery, the patient returned to his PCP complaining of severe headaches. His PCP felt the headaches were migraine-related, but shortly thereafter, the patient presented to the emergency room with excruciating headache pain. He was discharged without a conclusive diagnosis. The next morning, he was found unconscious and taken to the hospital where he expired the following day. An autopsy revealed that death was due to a pituitary tumor hemorrhage. The widow and three minor children sued the insured, the earlier ophthalmologist, the PCP, two emergency room physicians, and the hospital.

It was difficult to find an expert witness willing to testify on behalf of the insured. The ophthalmologist had consecutive visual fields that showed an evolving bitemporal hemianopsia. Close review of the formal visual fields show combined arcuate glaucomatous changes and bitemporal hemianopsia. Expert witnesses and consultants in the case described the visual fields as showing “classic” signs of a pituitary tumor. One consultant presented the visual fields to a group of ophthalmology residents. They all diagnosed an intracranial lesion. While the insured testified that he reviewed and compared the visual fields, there was no record or documentation to support this. Nor was there any communication to either the patient or the family physician regarding the test results or contemplated follow-up.

The emergency room physicians and hospital were dismissed from the case based upon a strong causation defense that, by the time the patient came to the emergency room, it would have been too late to operate anyway since surgery or radiation therapy are only effective before the lesion hemorrhages. The family practice physician settled for approximately $100,000 and the earlier ophthalmologist settled for about $110,000. With the consent of the insured, OMIC paid $790,000 to settle the case.

These two case studies involving diagnostic errors highlight the importance of careful documentation and communication with colleagues. Review, date, and sign test results before they are filed in the medical record. Discuss them in letters sent to referring physicians, and provide patients with copies of test results. Follow up on missing results and missed appointments. See www.omic.com for recommendations on “Noncompliance” for sample tracking systems and letters to patients.

TABLE 1 – OMIC and PIAA Wrongful Death Statistics

Wrongful Death Claims

OMIC                    PIAA – OPHTHALMOLOGY           PIAA – ALL SPECIALTIES

Percent of all claims                        2.4%                      2.6%                                                      24%

Percent with indemnity                 24%                        24%                                                        30%

Average indemnity                         $295,000              $236,000                                              $243,000

TABLE 2 – Allegations in OMIC Wrongful Death Claims

Allegation                                                                            Number               Number Paid     Total Indemnity

Diagnostic Failure                                                             29                           8                              $3,430,000.00

Surgery – Improper Performance                             24                           4                              $1,100,000.00

Treatment/Procedure – Improper Performance  19                           5                              $988,750.00

Miscellaneous                                                                   10                           2                              $99,999.00

TOTAL                                                                                  82                           19                           $5,618,749.00

TABLE 3 – Treatment/Procedures in OMIC Wrongful Death Claims

Treatment Procedure                                                    Number               Number Paid     Total Indemnity

Medical Evaluation                                                          20                           7                              $2,185,000.00

Retina                                                                                   22                           4                              $1,375,000.00

Miscellaneous                                                                   12                           3                              $908,749.00

Oculoplastic                                                                        12                           2                              $790,000.00

Cataract                                                                               10                           2                              $210,000.00

Glaucoma                                                                            6                              1                              $150,000.00

TOTAL                                                                                   82                           19                           $5,618,749.00

TABLE 4 – Practice Focus of OMIC Insureds involved Wrongful Death Claims

Practice Focus                                                                   Number               Number Paid     Total Indemnity

Comprehensive                                                                32                           7                              $2,308,750.00

Retina                                                                                   18                           5                              $1,750,000.00

Entity                                                                                    17                           5                              $669,999.00

Glaucoma                                                                            3                              1                              $150,000.00

Oculoplastic                                                                        6                              1                              $740,000.00

Other                                                                                    6                              0                              $0.00

TOTAL                                                                                  82                           19                           $5,618,749.00

(Endnotes)

1              The PIAA Data Sharing Project is the largest independent source of professional liability claims loss data in the world. Since 1985, 267,713 closed claims have been reported to the database, including 7,600 reported claims against ophthalmologists. OMIC does not submit data to the PIAA Data Sharing Project.

Co-Defendant CRNA Denies Responsibility for Failed Resuscitation

OMIC ARTICLES ON ANESTHESIA LIABILITY

• This article appeared in an issue of our Digest devoted to wrongful death claims. The policy article in that issue addresses supervision of CRNAs and liability questions: https://docs.google.com/viewerng/viewer?url=http://www.omic.com/wp-content/uploads/2012/12/Digest-Summer-2012.pdf
• Another issue of the Digest analyzed ophthalmic anesthesia claims: https://docs.google.com/viewerng/viewer?url=http://www.omic.com/wp-content/uploads/2012/12/Digest-Winter-2006.pdf.
• Here are detailed risk management recommendations on ophthalmic anesthesia: http://www.omic.com/wp-content/uploads/2012/04/Anesthesia-Liability.pdf.

Ryan Bucsi, OMIC Senior Litigation Analyst 

Digest, Summer 2012

Allegation

Negligent resuscitation resulting in death of 45-year-old father of three.

Disposition

Case settled for $1,775,000 of which CRNA contributed $975,000 and OMIC insured contributed $800,000.

Case Summary

Anon-OMIC-insured ophthalmologist performed cataract surgery on a patient who subsequently developed a hemorrhage OD. The patient was then seen by the insured, who had previously treated his proliferative diabetic retinopathy and bilateral retinal detachments. The insured recommended a vitrectomy under local anesthesia at a surgery center knowing that the patient had tolerated the cataract surgery under local anesthesia. During the vitrectomy, a CRNA administered local anesthesia with IV sedation, and the insured performed a retrobulbar block OD. When the patient became agitated and complained of pain, the CRNA provided more sedation after which the patient turned pale and stopped breathing. The CRNA administered oxygen through an Ambubag but O2 saturation did not increase. The insured instructed the CRNA to intubate and 911 was called. Despite intubation, the patient’s O2 saturation did not improve. The CRNA confirmed that the tube was in the trachea but asked the surgeon to listen for breath sounds with him; both the surgeon and CRNA heard breath sounds. When the paramedics arrived, they determined that the CO2 monitor had not changed color indicating the tube was in the esophagus rather than the trachea. This prompted the CRNA to get into a shoving match with one of the paramedics. The paramedic re-intubated the patient and O2 saturations began to go up. The patient was transferred to the hospital where he died eight days later.

Analysis

The plaintiff’s anesthesiology expert had many criticisms of the insured ophthalmologist. He testified that surgery should not have been performed since the plaintiff had low blood sugar and high blood pressure on the morning of surgery. It was this expert’s opinion that, given the patient’s medical condition, general anesthesia should have been used, but if local anesthesia was used, the surgery should have been performed in a hospital or facility where an MD anesthesiologist was available. Since this surgery center did not have an MD anesthesiologist, the expert pointed to the ophthalmologist as the “captain of the ship.” The expert testified that the CRNA did not intubate the patient properly and the insured did not diagnose improper esophageal intubation.

The defense expert disagreed with these opinions and the role of a surgeon in anesthesia care. He insisted that the anesthesia provider is responsible for monitoring the patient during surgery. He testified that the CRNA failed to monitor and communicate a low oxygen level to the insured prior to the patient’s arrest, thus leading to a delay in resuscitation. Unfortunately, the defense expert was not comfortable rendering an opinion on the standard of care related to the decision to perform surgery. The co-defendant CRNA testified at his deposition that he was responsible for providing anesthesia to the patient, but that the insured was the “captain of the ship.” The CRNA admitted that he had not performed an intubation in the five years preceding this case and that he never discussed the risks and complications of anesthesia with the patient because he did not want to scare him. However, he maintained that the intubation was properly done and that the paramedic dislodged the tube. It was defense counsel’s opinion that a jury would award the plaintiff $2.8 to $4 million and hold the OMIC insured 25% to 50% liable. The CRNA settled first for $975,000, and the OMIC insured settled later at mediation for $800,000.

Risk Management Principles

For the OMIC insured, this could be viewed as a case of being in the wrong place at the wrong time. The procedure was performed in a surgery center with a CRNA who allegedly did not properly intubate the patient leading to a prolonged period without oxygen and eventual death. There are several steps insureds can take to minimize the risk of an improper resuscitation in a surgery center. First, find out if there is a peer review process in place to review the competency of CRNAs and anesthesiologists. Inquire about the emergency response measures in place and whether there is anyone else available within the surgery center to assist with resuscitations. Lastly, call 911 immediately when a potentially life-threatening situation arises.

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.

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.