"The whole truth and nothing but the truth" has become a courtroom cliché. If the case is a medical malpractice trial, veracity on the part of all players may be mandatory but not necessarily meaningful, according to a medical defense expert.
"The courtroom is not a fact- or truth-finding environment," said attorney James Saxton. "It's about who does the better job. That's a very sad reality, but it is reality. It's not just about saying 'The medicine is good' because there are going to be people on the other side who say, just as loud, that it's not so."
Doctors must face up to the harsh reality of malpractice litigation by becoming sincerely involved in their cases, Saxton said in a presentation at the 2005 American Brachytherapy Society (ABS) meeting in San Francisco.
Saxton, who is the chairman of the health litigation group at Stevens & Lee in Lancaster, PA, offered ABS attendees an outline of the "anatomy of a lawsuit," as well as advice on how doctors can put their best foot forward in any unpleasant legal situation.
"I get a chance to bounce around the country, representing physicians, and a lot of times, I see doctors not involved in their own cases as they should be," Saxton said. "Sometimes they think 'My insurance carrier will take care of it, or the lawyer that my insurance carrier hired will take care of it.' I'm going to show you that you can change the odds a little by getting involved."
Negligence
While the plaintiff's attorney will cry negligence on the part of the healthcare professional, the majority of cases are not that dramatic, Saxton said, explaining that he sees "more cases of maloccurence rather than negligence."
Still, in the public eye, the difference between negligence and maloccurence is mostly semantic. If the patient believes her expectations weren't met by her physician, she will jump to the conclusion that hers is a case of malpractice, he warned.
Causation and damages
The disciplines of radiation oncology and cancer care are complex. Unlike surgery in which the cause of the injury may be more cut and dry -- there wasn't an injury and now there is -- cancer treatment is a more nebulous area.
"What we are really talking about is did the therapy work, to what extent did it work, or to what extent did it make a difference or not? All those lines become blurry," Saxton said. In addition, "lawyers have created a different type of legal causation, and that is if you have increased the risk of harm, then that's considered to be causation."
Once causation has been established, the plaintiff will request compensation for damages.
Pleadings and discovery
The trial begins long before anyone steps foot in a courtroom with a pleading. The complaint is filed by the plaintiff, setting forth all allegations of negligence and establishing causation as well as the damages. After the lawsuit is filed, the defense's side will file an answer to the suit. At that point, the long period of discovery starts, Saxton said.
"(Discovery) can take years," he explained. "(Discovery) can be interrogative or a request for production of documents (curriculum vitae, list of journal subscriptions). Each side is entitled to very liberal discovery of facts that the other side has."
Deposition
The deposition is one key for building a solid case, and Saxton urged physicians to prepare for the worst.
"The deposition is the opportunity for the plaintiff's lawyer to sit down with you and question you -- your background training, your experience, and microscopically, what happened in that particular case. And lawyers are very experienced in this area. This is not a peer-review setting. This is a very adversarial process. That lawyer representing the plaintiff is trying to extract facts out of you, on the record, that (are) going to help their side."
The onus falls on the lawyer to prepare a client for deposition, Saxton said. This includes not only going over the reported, documented facts, but also dissecting a physician's thought process while treating the patient. And going over the game plan for a few hours at the end of the day simply won't suffice, Saxton warned.
"Set aside some time during the day when you are fresh -- at a minimum a half day, maybe a full day. You are going to invest one day of your career for that one case that you have because it's going to make a difference.... In this day and age, you can't afford to lose a case; you can't afford to have a high six-, seven-figure verdict," he said.
Expert witnesses
The second key factor in a winning case is the right expert witness. Saxton suggested that it would be foolhardy to leave the selection of an expert solely to the attorneys.
"Be involved in choosing your own experts," he said. "You can't know them. They can't be someone that trained you; they can't be someone where the other side will be able to show a bias. But I wouldn't simply rely on your counsel to go out and get a garden variety expert."
Before the expert is retained, ask to see his resume and examine his credentials. But bear in mind that it is not always feasible to get the cream of the crop, as insurance companies will sometimes put a cap on the hourly retainer paid to the expert.
Pretrial process
A doctor's obligation to be prepared doesn't end with the deposition. By the time everyone is ready to move on to the pretrial process, two and a half years may have gone by, Saxon said. That's when the real challenges begin.
"When you get into the courtroom, it's a very, very foreign place. If it's unknown, you are going to get uncomfortable. If you are uncomfortable, you are not going to be as clear and credible as you want to be when you take the stand," he said.
Saxton said he puts his clients through the pretrail ringer by reviewing the pleadings, preparing for the deposition, and then attending a "trial school." This mock trail phase is the time to put the lawyer to the test and ask lots of questions. "You need to make sure that your lawyer explains exactly what's going to happen in that courtroom," he said.
The jury
Again, the justice system is set up so that defendants are evaluated by a jury of their peers. But the chance of a physician having a peer in that jury box is slim-to-none, Saxton said. A doctor would be better off thinking of those jurors in a different light.
"In all my trials, I've never had a doctor on my jury. I've never had the spouse of a doctor, or the friend of a doctor, or someone who will even admit that they like doctors," he said. "And yet I always have 12 patients on every case."
Staying out of court
In the second half of his talk, Saxton shifted gears and discussed how physicians can keep potential cases from even making into the hands of lawyers. These suggestions ranged from behavioral changes to more stringent practice management.
Five-star service
Following in the footsteps of large service-oriented organizations, Saxton suggested that physicians create a customer service setting so that the patient feels well tended to from start to finish (he cited the Ritz-Carlton hotel chain as an example). This may mean honestly evaluating how the office is run.
"Know the behavior of your staff," he advised. "Do you know how they answer the phone or greet patients? If you can incorporate a five-star service in your practice, you'll reduce your liability exposure."
Communication
All too often, physicians play the "busy card," justifying rude or curt behavior because they are busy. But using a lack of time to be abrupt with patients is a poor excuse, and may very well lay the groundwork for a lawsuit should something else go awry.
"You have to impact risk in the first instance," Saxton said. "Where do complications come from? Where do lawsuits come from? You need to ask yourself, 'What kind of communicator am I, especially when things go wrong?' If we can impact behavior, we can impact risk."
While change must come from within, there are outside resources that physicians should take advantage of, for themselves and their staff. Saxton recommended communication training seminars, books, and films. He also suggested having in-service programs during which the staff can come together and discuss such issues as five-star service.
"Age is not an excuse; changing behavior is possible," Saxton insisted. His quickie recipe for inducing personal change is to recognize any behavior issues, verify with staff that the behavior is causing problems, and consciously change the behavior for six weeks to invoke a physiological as well as psychological response.
Informed consent
Beyond developing a bedside manner, written communication between doctor and patient must also be clarified. Specifically, Saxton took ABS attendees to task for not using informed consent to their advantage.
"It's incredible to me that we still have physicians who are not getting adequate informed consent with what we call a third-generation consent form," he said. A solid informed consent form will go beyond the description of the procedure to list all of the potential risks of the procedure. Too often, Saxton said, patients will relinquish any responsibility by declaring in court: "I didn't know what I was signing. I didn't know it was that important."
"On all your consent forms, you ought to have an introductory paragraph clearly and adamantly stating the point of the form, i.e., 'Do not sign this form until you understand the risks and alternatives and all of your questions have been answered,'" Saxton said.
As an added cautionary measure, each explanatory section of the consent form should have a "check box" that patients initial, indicating that they read the form, understood it, and had no questions.
Finally, Saxton pointed out that the mere existence of a witness signature will not indemnify the physician against a lawsuit. "Right now, you have the witness witnessing the (final) signature. But it's never about the signature. It's about did (the patient) know and understand the risk? Did (the patient) understand the questions? We've used this in court but more importantly, it keeps people out of court," he said.
Event management
What happens if something does go wrong, or in modern medical parlance, there is an adverse event? Saxton said the days of turning a blind eye to even the most minor medical mishaps are gone.
"Too many of us, look to the left, look the right, and then hope nothing happens," he said. "We can't do that any longer. We've got to do active event management. Remember that postevent, you are creating evidence. The question is: Is it evidence that's going to be used for you or against you?"
Should a problem arise, once again, communication is the key to making sure that the mole hill doesn't turn into a mountain. Seventy-five percent of all medical malpractice claims are because of communication errors, issues such as explaining when there is an error and doing event management, Saxton said.
"We've got to start looking at the true causes," he said. "What the plaintiff's lawyers are saying is 'Don't give me a malpractice case; there's not enough money in it. Give me a malpractice/service lapse case.' That service lapse is what's paraded in the courtroom."
By Shalmali Pal
AuntMinnie.com staff writer
July 15, 2005
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