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MEDICAL PRACTICEIN THE COURTROOM

Robert W. Kerpsack

Attorney at Law

21 East State Street, Suite 300

Columbus, OH 43215

Telephone: (614) 242-1000

Facsimile: (614) 242-3948

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MEDICAL/LEGAL TOPICS

• PERSONAL INJURY CLAIMS

• DEPOSITION/TRIAL TESTIMONY

• PROFESSIONAL MALPRACTICE

• STANDARDS OF PRACTICE GOVERNING LAWYERS AND PHYSICIANS

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AMERICA’S ADVERSARIAL SYSTEM OF CIVIL JUSTICE

• PLAINTIFF HAS BURDEN OF PROVING LIABILITY AND DAMAGES

• DEFENDANT ATTACKS

“CREDIBILTY” OF CLAIM

• TREATING AND CONSULTING PHYSICIANS GIVE EXPERT MEDICAL TESTIMONY

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PERSONAL INJURY DAMAGESHospital and medical expenses (past) $ ________Hospital and medical expenses (future) $ ________Lost earnings (past) $ ________Lost earnings (future) $ ________Pain and Suffering (past) $ ________Pain and Suffering (future) $ ________Inability to Perform Norm. Act. (past) $ ________Inability to Perform Norm. Act. (future) $ ________

__TOTAL DAMAGES $ ________

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PHYSICIAN DEPOSITIONS

• DISCOVERY DEPOSITIONS– What opinions do you hold?

• TRIAL DEPOSITIONS – Direct examination

• Non-leading questions

– Cross-examination• Leading questions

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VIDEO TRIAL DEPOSITION TESTIMONY

• QUALIFICATION AS MEDICAL EXPERT– Describe: education, training & experience– Bring a copy of your CV

• EXPRESS OPINIONS WITH:• “reasonable medical probability” (past/present)

• “reasonable medical certainty” (future)

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BASIS FOR MEDICAL OPINIONS

• Based upon your:– 1) Education , Training & Experience;– 2) History related to you by the patient;– 3) Findings of your physical exam of the patient; and– 4) Review of medical records and diagnostic testing

(w/o relying upon other opinions w/in records)

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MEDICAL OPINIONS IN A PERSONAL INJURY ACTION

• DIAGNOSIS• DID TRAUMATIC EVENTCAUSE OR CONTRIBUTE

TO DIAGNOSED CONDITION• WHETHER DIAGNOSED COND. IS PERMANENT • NEED FOR FUTURE MEDICAL TREATMENT

– DESCRIBE TREATMENT/ESTIMATED COST

• SUFFERED A PERMANENT DISABILITY• MEDICAL SERVICES REASONABLE AND

NECESSARY TO TREAT DIAGNOSED CONDITION • MEDICAL BILLS USUAL AND CUSTOMARY

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BEING A GOOD WITNESS

• Dress like a doctor, not a lawyer– wear your lab coat for the video deposition

• Use visual aids (anatomical models)• Explain opinions like you are speaking to a

six-year-old child• Think before you speak• Keep answers short and to the point• Be patient and don’t loose your temper

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PROFESSIONAL MALPRACTICE

• MEDICAL MALPRACTICE DEFINED:– Medical services falling below the minimum

standards of practice and care established by the medical community.

• Physicians are not expected to be “perfect”– There may be many ways to manage a patient

that are within acceptable standards of practice

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PROVING MALPRACTICE

• A PHYSICIAN IN THE SAME OR SIMILAR SPECIALTY MUST RENDER THE FOLLOWING EXPERT OPINIONS:

– The minimum standards of practice and care for the circumstances at issue are. . .

– The medical services in question fell below the minimum standards of practice and care.

– The patient suffered damages as a proximate result of the substandard practice and care.

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FEW MALPRACTICE CLAIMS ARE PROSECUTED

• Medical malpractice claims are ferociously defended by your liability insurance company.

• It can cost $50,000 or more to prosecute a medical malpractice claim– It is not economically feasible to prosecute a malpractice

claim with a potential value below $100,000

• Few juries find in favor of the plaintiff because malpractice claims are difficult to prove

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AVOIDING MALPRACTICE

• Be a good listener.

• Be a good communicator.

• Chart conversations with patients/family

• Be respectful and responsive to your patients (and patients’ family).

• Don’t worry about malpractice.

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STANDARDS OF PRACTICE GOVERNING LAWYERS

AND PHYSICIANS• Standards adopted by Academy of

Medicine and Columbus Bar Association– Medical reports to be furnished upon request– Physicians being called to testify as a witness

• Due regard is to be given to the professional demands of the physician’s time.

• Payment for physician’s medical services from personal injury settlement proceeds

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ROBERT W. KERPSACK

• Columbus trial lawyer Bob Kerpsack is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy. He holds an AV rating (the highest) from the Martindale-Hubbell National Law Directory. He received his undergraduate degree from Ohio State University and his law degree from Capital University. He is also a graduate of the National Institute of Trial Advocacy and is recognized as an “Advocate” by the National College of Advocacy. Bob is the immediate past elected chairperson of the Insurance Law Section of the Association of Trial Lawyers of America.