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Anatomy of a Lawsuit
James Fitko, MD, MPH,FACOEM
Civil Procedure
• Federal Rules of Civil Procedure• State rules
The Complaint
• Relatively easy to file• Statute of limitations• Caption• Alleged facts
– Numbered paragraphs
• Prayer for relief• Pleadings
Process serving
• Various methods• You can run, but you can’t hide• Contact your insurer immediately
– Must answer in 20 days
• Don’t discuss any specifics with others
Motions to dismiss
• Lack of jurisdiction– Subject matter– The person
• Improper venue
The Answer
• Limited time to avoid a default judgment
• Responses to allegations in the complaint
• Affirmative defenses
Necessary elements for a claim
• Duty– Physician-patient relationship– Standard of care
• Breach• Injury• Proximate cause• (Informed consent)
Defendant Suits
• Counterclaims• Cross-Claims• Third-Party Actions
Motions
• To dismiss• Directed verdict• Continuance• Summary judgment• In limine
Discovery
• Scope• Interrogatories• Requests for Production of
Documents• Subpoenas duces tecum• Depositions• Independent Medical Exams (IMEs)
Discovery - Scope
• Broad based– Personal questions
• Privilege– Attorney-client– Physician-patient– Husband-wife
• Attorney work product
Discovery - Interrogatories
• Written questions• Under oath
Requests for production of documents
• Parties to the suit• 30 day time limit
Subpoenas duces tecum
• Require the provision of documents• Not parties to the suit• Protective orders
Electronic Health Record
• Technical problems with the software
• More details than a paper record• Signatures• Boilerplate and checkboxes
IMEs
• Independent medical exams
Depositions
• Purpose• Preparation• Location• The transcript• Advice for the deponent• Videotape• Abuse
Depositions-Purpose
• The deponent is under oath• Gather information• Determine facts• Evaluate you as a witness• Lock you down• Intimidation
Depositions-Preparation
• Very important• Settlement
– >90% settle without trial
• Meet with counsel• “A reasonable degree of medical
certainty”• Study all case material
– Medical record– Expert reports
• Review the literature
Depositions-Time and Location
• Don’t box yourself in on time constraints
• Not in your office
Depositions-Transcript
• Don’t waive right to read and sign• Changes in form or substance
– Must be explained
Depositions-Advice
• Listen to the question carefully• Take your time• Don’t lie• You don’t know • You don’t remember• Don't guess or assume• Take breaks
Depositions-Advice
• Don’t get angry• Don’t joke• Don’t volunteer any information• “Off the record”• Don’t form “instant opinions”• Don’t say that a text is
“authoritative”• “Hypothetical” situations
Depositions-Advice
• Inventive assumption– I cannot answer the question as asked– I don’t agree with the assumption
• Don’t use the other side’s words• Never say never (or always)
– Don’t use absolutes
Depositions-Advice
• Repetitive questioning• Don’t elaborate• Don’t volunteer information• Take all the time you need to
review documents
Depositions-Videotape
• Dress appropriately• Look at the camera• Body language• Don’t get angry or combative• Don’t appear nervous or evasive• Don’t eat, drink, chew, etc.
The Trial
• Bench trial/Jury trial• Finder of fact• Level of sophistication• Opening statements
– Theories of the case and previews of evidence
• Burden of proof– Preponderance of evidence– 51%– A reasonable degree of medical certainty
The Trial
• Evidence• Witnesses• Plaintiff goes first• Closing arguments• Jury deliberates• Verdict
Evidence
• Federal Rules of Evidence• Relevant evidence
Experts
• Qualified by– Knowledge– Skill– Experience– Training– Education
• Reports• Express opinions
– Compare to lay witnesses
Daubert
• Federal Rule of Evidence 702– Expert by knowledge, skill, experience,
training, or education
• Daubert v. Merrell Dow Pharmaceuticals– The theory or technique can be tested– Peer review– Rate of error and standards– General acceptance– Did the theory exist before the litigation?
• Motion in limine
Remedies
• The judgment• Damages
– General—pain & suffering– Special—lost wages, medical bills– Punitive
• Court orders
The Appeal
• Decide questions of law, not fact• An appeal is not a retrial• New trial• Reverse verdict
Implications for Medical Personnel
• Record keeping and documentation• How will experts view your actions?• Red face test• Prepare thoroughly for depositions
“Defensive” Medicine
• Limit injury if a mistake is made• Consultations• Recommend further treatment and
follow-up• Notify the patient or family• Answer questions• Notify your malpractice insurer• Write down everything you
remember• Apologize?
The Adverse Event
• Whose “fault”?• Was a mistake made?• How serious is the result?• Could/should something have been
done differently?
Possible Motivations
• Justice• Money• Revenge• Effect a Change• Prevent Future Recurrence
Dealing with a Lawsuit
• Don’t take it personally• It’s business• It’s a chess game• 89% of ObGyns have been sued• 70% result in no judgment against
the physician• Physicians win 80% of cases that go
to trial
Thank You