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