Good morning, everybody. It's nice to be with you. I thought I'd give you a little background about myself. First, 10 years of my practice, I defended medical negligence claims and have since moved on to more commercial litigation, but I am outside general counsel to the AANS. So I've seen malpractice litigation, both defending it and while I'm representing the AANS in litigation. I see it from a different vantage point. So what I wanted to do today was kind of share with you some of my takeaways from what I see in these claims and some strategies I think you can utilize in trying to reduce some of your exposure. And I guess one thing Richard touched on is how meaningful is the risk? And I wanted to show you one more slide here. And this is kind of a good news, bad news scenario for you. If you look up top here, this is the percentage of your career where you're going to be consumed with a pending claim. And bad news is that's about 25%. The other part of the bad news is you're top of the food chain up here. The good news is look at the portion of the bar in gold there. Very few of those claims are being paid out. So what that tells me is that there's a lot of bad claims out there. These are, from the lawyer's perspective, by and large, defensible cases. And part of the lawyer's job here is to figure out what part of the claim is bad and what can we do to get rid of it. But what you need to realize going into this game is you're a player. Chances are you're going to get sued. You're going to get sued more than once. And these claims last for a while. I think Richard already showed you this in terms of the number of physicians who are going to see a claim annually. You see neurosurgery is about 20%. So I've always loved this picture here. But keep in mind, attorneys are going to file lawsuits. And so the job of defense counsel is what do we do with these claims here in blue? How can we protect you better or keep you out of those lawsuits altogether? So you've already heard a lot today about informed consent. I will tell you, I can't understate the importance here in terms of how this comes into play. This is one of the most commonly filed claims that we see. And when you think about it, what kind of claim goes to trial? What issues? What survives all the pretrial motions are issues of disputed fact. And informed consent is inherently fact specific. What did you tell the patient? When did you tell the patient? Who was there? What did the patient understand? There's a lot going on there. And it's very easy for a crafty plaintiff's attorney to draft a claim that's going to survive the pre-trial stage and get to trial. So that's why you see so many of these claims. I've taken so many depositions over the years, but one takeaway from the depositions of patients is that malpractice claims almost always come from a breakdown of communication between you and the patient. So you've heard it already today. Talk to the patient, not at the patient. Plain language that they understand. One question here, are there relevant circumstances unique to the patient? I'll tell you a war story. I tried a case on behalf of an orthopedic surgeon. And he had performed a tibial osteotomy for a high schooler who had broken a leg playing baseball. And the patient was a renowned ballroom dancer. And there was no question that the surgeon had discussed general nerve damage and the potential of damage to the peroneal nerve. What the patient didn't understand was that there was a chance of foot drop after this procedure and that he wouldn't be able to move his foot up and down. And we wound up having to try the case on that basis. The prevails. But had there been a better discussion on a level that a high schooler could have understood, that claim never goes to trial. Answering questions that may arise later. Not necessarily tied to informed consent before the procedure. But again, think about what you're trying to do when you're defending these claims. We want to tie a story of effective communication from the start. So make sure that you're continuing to answer questions that may arise after you treat or perform a surgery. Complications. Now, you'd be surprised about this. You know, we all know not all surgeries go well. And sometimes you have to perform a corrective surgery. The informed consent process starts all over again. And I can't tell you how many claims we had to defend where there was informed consent obtained for the first procedure, but not fully obtained for that second procedure. So keep in mind, the process starts all over again. Another word on complications. There are going to be surgeries that are going to go bad. You may malposition a graft in a procedure. There are, and it varies state to state in terms of what you can tell a patient, how much protection you have in terms of, we made a mistake, I'm sorry. Things didn't go as planned in the first procedure. Consult with your attorney before you're going to have one of these discussions. Because this is something that varies state to state. Confirm the patient understands. We tried a case and the physician was able to testify and it was also in the medical record that he asked the patient to repeat to him what the risks of this particular procedure were. And we also had in the medical record, defeated the claim very easily. It's a great practice to engage in. Again, tying up on my theme of effective communication, when you can show as part of the record that you have followed up on appointments, on recommended tests, on seeing other specialists, all of this helps to establish and helps to lend credence to your theory that there was effective communication from the start. It tends to undermine any lack of informed consent claims. All right. The record. You've heard a lot about it already today. And let me give you my thoughts on it. Number one, I know you are all going to be extremely busy, but from the defense perspective, when we are looking at these claims, this is perhaps the most compelling piece of evidence we have. If the historical account is thorough, it is accurate, everything's in there, that makes a case a lot easier to defend. Where we run into trouble and where you will run into trouble and you create issues of fact is when that record is incomplete, when it's illegible, when it's inaccurate. And juries by and large find that those entries you make, at or near when the event occurs, are highly reliable. Courts find them reliable. So get everything in there in a timely fashion. The mantra of the plaintiff's bar is, you've already heard it today, if it's not in the record, it didn't happen. The defense perspective is obviously different, but I'm guaranteeing you the plaintiff's lawyer, that's their theory of the case. And I will tell you I have defended cases where a surgeon does not put something in the record. So for instance, restrictions post-surgery. And there's nothing in the record that demonstrates that that discussion occurred. And at trial, the surgeon testifies, it was my habit, it was my custom, to always have that discussion. And that's a tough sell. At that point, you've got an issue of fact that a jury's thinking about. So again, make sure it's in the record. You want that record to serve as the basis for your defense. If there's any holes in it, it becomes a tool for the plaintiff's attorney to prove up a claim. Again, these are some of the things that obviously need to be in there. The flip side, if all this isn't in there, is if it's incomplete, inaccurate, illegible, you've got issues of fact. So a lot of cases get nipped in the bud when a plaintiff's attorney's looking at it, and they see a complete record. It may not be something that gets filed. The informed consent conversation. I'll tell you another war story on this. We had a case where a patient was seeing two different surgeons in a group. And documentation proved up that the first surgeon had clearly had a discussion about risks of the procedure. The second surgeon walked into the room to see the patient, and the patient said, according to the second surgeon, stop. I've already heard it all from the first guy. Don't tell me anymore about it. I understand. Never a record of that. And it winds up going to trial on an informed consent claim. Now, it gets proven up that this first surgeon had the discussion. But again, that's another claim that never sees trial if it's in the record. So make sure everything's in there. Make sure it's complete. Make sure it's thorough. The altered record. This is the biggest gift you can give a plaintiff's attorney. The defensible case becomes indefensible, and it does so quickly. It is not only a credibility loss with a jury, but keep in mind you've got a judge presiding over this case. And the last thing you want to do is also have that judge questioning your credibility. We had a case about ten years ago where a surgeon about 60 days after trial goes back into the record, adds a handwritten note because he felt that it needed to be more complete. Didn't alter anything, but added this 60 days later. And it's in the same color ink, and there's no date on it, no initials. And this all comes out at trial. And even though there was no ill intent there, you could see like that, the jury turned on the surgeon in a heartbeat. So I caution, just don't do it. It is just impossible to recover your credibility at that point. A couple of other things to think about in terms of minimizing your claims. These seem simple, but I can't tell you how many claims we've seen. Know your limitations. If you need to bring in a specialist on a particular case, do it. Because we see too many claims where there are allegations that the physician acts outside the scope of his or her expertise. So for example, we had a case where a surgeon performs a spinal procedure, and there's a post-surgical infection that develops. Turns into osteomyelitis. And the negligence claim is this particular surgeon had no experience treating osteomyelitis, never brought an infectious disease expert in. It's the type of claim that I think never sees the light of day if you bring in the specialist at that point. So again, it seems simple, but it's something that you want to make sure you're doing. Stay on top of your game. You want to make sure that you know what the standard of care is. Stay on top of research, the latest in medical devices. Again, seems simple, but this goes a long way to reducing your exposure. You would be surprised how many claims I've seen because of folks not doing this. I will tell you, Richard touched on this, the electronic health record templates. This is a real hot-button issue right now. And there's some real limitations in the templates. And we're starting to see more and more claims filed in this area. So don't rely on those templates. To the extent you need to get more information in a record, do it. But those templates have some serious limitations. Let's talk a little bit about if you do wind up getting sued. And I will tell you the biggest mistake you can make is, and I've seen this a lot, is doctors are ticked off. They're emotionally charged when they get sued. And some of them just want to ignore it. They know they've got a lawyer being assigned to represent them, and they kind of want to let the lawyer run the show. Don't do it. Get involved. You are part of the team. You have to realize that we're not the expert here. You are. And we need you to help us teach us the medicine. Our job is to spin a story for you and present the facts and the law in the best way we can. But we can't do that effectively unless you play an integral role in the process from day one. So get involved early. Look at the medical records that are being produced in Discovery. Talk to your attorney about the medicine, about the science, about the procedure, so that you can direct him to what he should be asking in Discovery. You can help your attorney prepare for depositions and be asking the right questions, but don't rely on expert witnesses to educate your lawyer. You do that. You will have a much more effective attorney working for you if you are part of the process. In terms of the litigation process itself, there's kind of three tools that I think you all need to think about. The first being preparation. You guys need to know the case better than the plaintiff's attorney. If you get named in a suit, you will be deposed. And you want to make sure you know those medical records. You've seen the Discovery responses. You've read deposition transcripts. You might even attend depositions. But be prepared. There are... Let's put it this way. When you are being deposed in your Discovery deposition, a plaintiff's attorney is not only looking to see what kind of witness you make, but they want to see, A, how prepared you are, B, is this a case they want to take to a trial? How are you going to appear for a jury? So if you show up to a deposition, you're well-prepared. He knows he's got a formidable opponent. So be thinking about that. Presentation. It's difficult to testify. It's not what you do normally. The way we converse is not the way you respond to a deposition question. It's not the way you testify at trial. You're going to have to take the time and get coached by your attorney on how to give a deposition, on how to testify at trial. And there's a real art form to it. So it's not something you can just show up to the day of. But it's something you're actually going to want to perhaps go see the room where you're going to be deposed. You're going to want to have read deposition transcripts beforehand so you can see the types of questions that are being asked. And often I'll do a mock deposition with the client. But be prepared both for your deposition and at trial. Perception. Here's something to keep in mind about juries. They want to believe. And you get to interview them at the end of these malpractice cases. Juries want to believe that in their locations they are getting good quality health care. They go in there with that bias. So your job you're already going in there with the pendulum in your favor just a little. They want you to be likable. They want you to be trustworthy. And they want you to be sincere. And you have to be consistent throughout trial. Whether that be when you're being questioned by your own attorney or whether you're being questioned by plaintiff's attorney. Be likable and be humble the entire trial. Perception goes a long way with juries. You know there's a thought that medical negligence cases become a battle in experts. And I can tell you juries will tell you the exact opposite. Most juries tell you that the experts cancel each other out. So then it turns into a likability contest. You, do they like the patient? So again, make sure that you are doing everything you can to make this jury find you to be likable. Richard showed you a slide about do's and don'ts. Let me give you one more don'ts because we had this happen to us at trial. Don't do, once you're named in a lawsuit, don't do your own independent research unless your lawyer tells you to do it. If you do it on your own, that's discoverable. If your attorney, if you talk to your attorney and he tells you to go ahead and do some research on your, do some research in his direction, that falls under the cloak of privilege. So something to think about there. And I'll leave you all with a cartoon which I've always liked. Picture of this.

medical negligence claims

outside general counsel

reduce exposure to malpractice litigation

effective communication with patients

maintaining accurate medical records