So, welcome to law school, all of you finishing residents. This is going to be your primer in medical negligence law, and I'm going to go through a lot of subjects. The key thing is just pay attention to the terms and learn some of the basic vocabulary. You don't need the nuances, but I'm going to go through the whole litany of things related to medical negligence for you, so it's not a foreign language, not a foreign subject, because the unfortunate fact is that, and I'm going to dwell down on this in a subsequent slide, that the frequency of lawsuits, and particularly for neurosurgery, is still significant, so this is something you can't just think is never going to happen to you, because statistically it may, and you need to know how to get through the process, so we'll go through the whole thing from soup to nuts. These are the subjects that I'm going to go over in some minor detail, some in more detail, and we'll call this course Medical Liability 101 for you. So frequency of lawsuits, first subject, the grim fact is basically that most physicians and virtually every surgeon during their practice career will face at least one malpractice lawsuit. The technical term is not malpractice, actually, just let's start right from the beginning, it's medical negligence, so it's a medical negligence allegation lawsuit, not malpractice. Every year, about 7.5 percent of doctors have a claim filed against them, about 20 percent of neurosurgeons and cardiac surgeons sued every year, and this is a lower number than it used to be. The doctor's company data from six to 10 years ago, at that time, the frequency of lawsuits for a neurosurgeon is that every neurosurgeon had the chance every other year of being sued, so it's gone down since then, and believe it or not, pediatricians and psychiatrists were sued the least, but what you'll see about pediatricians, their rate of payment judgment settlement is the highest. So here's the proportion of physicians facing a malpractice claim, who's on top? Welcome to the game. So malpractice payments, as I said, the pediatricians actually end up with the highest payment on a claim against them, more than neurosurgery. So the number of successful lawsuits is very small, which is the good thing. It's usually considered less than 5 percent, the latest statistics are actually less than 2 percent, where an insurer will pay a settlement or a court judgment. So a settlement is pre-court, so it's a settlement before you go to court. Going to court, jury, et cetera, an award is made, and that's a court judgment. So only 2 percent to maybe maximum 5 percent of physicians end up losing the claims that were made against them. The average claim paid is about $275,000 a year. The graph, in terms of malpractice payments, we're listed on the top, but that's not because we have the largest payments that are made against our cases. As you see, it's pediatrics. Pediatric statute of limitation is such that if you have a bad baby, and at 18 years old they apply to Harvard and they don't get in, the mother or father can sue the OB-GYN and the pediatrician for something at birth trauma that stopped them from getting into college. That's a little bit of a stretch, but that's the kind of thing that can happen. The statute of limitations is many, many years for a pediatric case, and you'll see we'll talk about statute of limitations for the standard adult case. So topic number one when you talk about medical negligence is to define negligence. So there's one thing you can take home from this is the four elements of what negligence really means. Number one is that there was a duty, that there was a breach of the duty, number two, and that there was causation. In other words, that the duty that was breached, that act caused the damages, which is part four. So that's the chain that can't be broken to have a complete medical negligence, allegation, claim, lawsuit. Proximate cause is causation, and that is defined by a cause which in a direct sequence that is unbroken by any new independent cause. And this is important in the medical context because, for instance, if you have a motor vehicle accident and the patient is injured and comes into the hospital, and then the doctor does some negligent act and causes more injury, that initial motor vehicle accident is still the initial cause and the ultimate cause in the chain of events that leads to the eventual ability of the plaintiff to recover. Even though there was an act of medical negligence that intervened, that could be a separate cause of action. So the chain of events is critical to understand. If the medical negligence is the proximate cause, and then there was something on the way to the eventual damages that broke the chain so that it wasn't just the doctor's medical negligence, but there was something else that happened on the way to the eventual bad outcome, the doctor might get off the hook because, but for that intervening event, the doctor's act of negligence might not have led to the damages that eventually occurred. So these are the types of thinking and language that you'll hear when it comes to medical negligence. Two elements in causation must be satisfied, the cause in fact, what really caused it, and the legal causation. So that chain and the legal causation is different from the potential cause in fact. So you'll hear that, and then that could confuse you unless you recognize that proximate cause has these two elements. So what's the definition of a doctor who is negligent? A doctor is negligent if he or she fails to exercise that degree of care and skill, and I'm reading this because this is what the law states, which is expected of the average practitioner. So that's the first term we're going to describe here in a moment. What is the average practitioner? And then in the class, what does in the class mean? We'll define class to which he belongs, acting in the same or similar circumstances. So we'll break this down in a moment. It's not a local community standard. You don't have a neurosurgeon in a small town that's got different standards applied to him or her as compared to somebody in Chicago with multiple world-class medical centers, every known bit of ancillary help. It's the same standard. The standard is the average practitioner in the class in the same or similar circumstances, not in the local community standard. It's an RCW, again, you've heard that term. It's the revised rules of Washington that contains the exact words, and it's pretty similar in most states. So the standard of care to which the algorithm is applied is when you're looking at medical negligence, you can't take a guideline and say the doctor didn't follow the guideline and thus broke the standard of care, breached the standard of care. The standard of care is defined without practice guidelines. So you can't be claimed to have caused damage because you didn't follow a double NS guideline. As good as the guidelines are, you can use it as a defense, but the plaintiff's side can't use a guideline saying that the doctor didn't follow this guideline, thus he breached the standard of care. That's not accepted legally. The standard of care is defined if he or she fails to exercise that degree of care and skill, which is expected, again, the same terminology that we're going to drill down on, the average practitioner in the class to which he belongs acting in the same or similar circumstances, not a guideline. So what are damages? Damages are what are proximate and foreseeable. They have to be foreseeable. They can't be something that just happens that are not foreseeable. So in other words, if somebody is a, let's say, a victim, so to speak, of an act of negligence, and there is clear-cut duty, breach, causation, and damages, the damages have to be foreseeable. If the damages are not foreseeable, the physician may escape being found to have performed an act of negligence. And the term is not guilty or innocent. This is not a criminal case. This is a civil case, so you don't use the terms guilty or innocent. To calculate damages, lawyers use simple equations. They have books that tell you what body parts are worth or what, and this is economic damages. We're not talking about non-economic damages. So let's say an arm, it's before negligence was applied, X value. After negligence, Y value. What are the damages? X minus Y. Very simple by the book. Non-economic damages, and we'll talk about that a little bit later. Totally different. Out of somebody's hat come these numbers, what non-economic damages might be in a particular loss or damages case. Totally non-prescribed, and this is why tort reform is so valuable, because it caps those non-economic damages. So there's a requirement for expert witnesses in almost all states. You really can't get a medical negligence case to a jury without an expert. In other words, if the plaintiff and the plaintiff's attorney does not find an expert witness to testify against the defendant doctor, that case will not go anywhere. You have to have usually an affidavit or a declaration by an expert witness on the plaintiff's side that says in black and white, and this is maybe all it has to say, is that Physician X breached the standard of care, and we'll go back to what the average practitioner in the class and all that really means, but that's all they have to state, is that there was a breach of the standard of care. There's one exception that I listed in the second bullet point, and that's in a race ipsa loquitur case. You might have heard that term. Maybe some of you speak Latin. What it means is the thing speaks for itself. So in a case where, let's say, you go to the ER and you clear somebody's cervical spine, and then they end up going into general surgical trauma, surgical procedure, and they come out quadriplegic, paraplegic, and somebody goes back and holds up an x-ray and shows you the fractured dislocation that you missed. This is an egregious example, but it happens. The plaintiff's attorney does not need an expert witness. All he needs to do is hold up that x-ray. The thing speaks for itself. Medical negligence, total missed diagnosis on the x-ray. So there's other things like that. Retained foreign body, retained clamp, sponge. Those can be considered race ipsa loquitur cases. Those are clear-cut, 100% breaches that an expert witness does not have to testify, sign an affidavit, et cetera, et cetera. So an expert witness, and we'll, again, go over more of this in subsequent talks by others, and my talk further will dwell on this. An expert witness must testify as to that standard of care. This published guideline thing on the plaintiff's side is not something that an expert witness can use to mount the case. So experts can base their opinions on their personal experience, their training, pharmacy inserts, textbooks, novel scientific evidence. There's strict criteria called Fry and Dobert analyses that are accomplished when a declaration by an expert witness is citing some novel scientific data that might be bogus or junk science. You might hear that term frequently in this arena. And the defense side can get that struck down in a summary judgment motion, and we'll talk about exactly what summary judgment is in a minute. I'm kind of introducing terms sometimes a little ahead so you'll hear them again and you'll recognize what they really mean. But in a situation where there's junk science, the defense can strike that and get a summary judgment motion to basically eliminate that case based on the junk science standard in Fry and Dobert. So the declaration has to survive summary judgment, and there's three requirements to survive summary judgment. That there was a duty, again, going back to the four negligence factors, that there was a duty, the duty was breached, and there's proximate cause. So the requirement to survive a summary judgment motion in the declaration that's made by the expert has to serve to convince the judge and the defense that they do have a case. They have a real expert who's not using junk science, that there was a clear-cut duty that was breached, and that that led to the damages. They don't have to talk about the damages necessarily, although sometimes that's thrown in there. And as I said, that's three of the four negligence factors. You need to just remember those factors going forward because they're going to come into play all the time. Now let's go back to really defining what it means that there was a breach based on the standard of care, and how do you define that standard of care to survive on the plaintiff's side summary judgment, or if you're going to strike it down on the defense side, what might be the criteria that the plaintiffs use to get that expert that would allow you to strike that particular expert out, and thus maybe close the case at that point? If the expert is not in the profession or class of the defendant, profession or class of the defendant in neurosurgery doesn't mean necessarily another neurosurgeon. It could mean another M.D. who is a neuroscientist, or if it's an emergency case, might be an emergency physician. But needless to say, it has to be a physician. It could be an M.D., it could be a D.O. It doesn't have to be an M.D. versus M.D., could be a D.O. versus M.D., but it can't be, and this is kind of a pecking order in the professional class doctrine, that you can't get a P.A. or a nurse practitioner or an R.N. or an aide, et cetera, to testify against a doctor. It has to be a doctor testifying against a doctor. So the opposite is also an important point, that in some cases where there's a hospital being sued and it's against the nurses or the aides, you can have somebody higher on the food chain testify in that situation. So a physician expert witness can be brought in on the plaintiff's side to testify against the hospital and their employees that are named in the suit if there's negligence ascribed to nursing staff or other hospital-employed staff. The hospital, of course, is the agency that has the vicarious liability of taking the brunt of the lawsuit for their employed staff, but the doctor on the plaintiff's side can be used as the expert witness. So let's go professional class a little more. The scope of practice generally matters. So if it's a neurosurgical case, you can get an orthopedic spine surgeon testifying against a neurosurgeon in a spine case. That's okay. If it's an emergency case and you have a neurosurgeon who's the defendant, but it's something that's not pure neurosurgical, but it's handling the ABCs in a trauma case that the neurosurgeon was the attending on or the primary care person in the call to the emergency room, an emergency physician could testify against a neurosurgeon as long as it's not about a neurosurgical principle, et cetera. So professional class has to be looked at as far as what is the nature of the claim and what is the allegation for the breach of the standard of care specifically. And again, this is all important. If you're being named in a lawsuit and you read it and you say, wait a minute, the expert that they got is not fulfilling these criteria that you've learned here today, let's get it thrown out in summary judgment because it's not the right profession or class or they didn't state that there was any breach of standard of care, et cetera, et cetera. So keep that in mind. That's sometimes an easy way to get a case thrown out. And in the state of Washington and several other states, there's a 90-day rule now where you're sent notice before the case is filed. So you see what the other side is alleging. That's the time to get on this and look to see if they've really dotted all their I's and crossed all their T's with all these things that they have to fulfill to survive summary judgment. Because if they haven't, and you can see it right in, you know, nip it in the bud before it's even filed as a claim, you can tell your insurance carrier, wait a minute, this is a bogus scientific bit of evidence they're using. It's junk science or the doctor's nowhere near in my profession or class or it's not even a doctor that they got. They got, you know, some retired ship, you know, physician to testify that the way I clipped this aneurysm wasn't right, et cetera. You get the idea. So defenses, you need to know if you are named and there's a claim against you, what are defenses to a malpractice suit? One defense is that you don't have to be in the majority in how you handled something. Likewise, if you followed a guideline, you can use that as a defense. But if you didn't follow a guideline, it's not damning. Because you can cite the respectable minority rule, which states that you recognize that most doctors would have done treatment one, but I did treatment two, and this is why. And you have to come up with a cogent rationale and not be a lone ranger, but have a minority opinion that you're following that you understand. You can cite some literature to back it up. It does not have to be the majority way of dealing with it. And this is an important way of defending a lawsuit. Because the other side's going to be saying, wait a minute, the greater than 51 percent of neurosurgeons would handle it this way. He or she handled it this way. They're in the minority. They've got to be wrong. And there's a respectable minority rule, which is a legally accepted principle, and it's exercise of judgment. Read this over. I can read it out loud, but you can just read it over. This protects you from using, if you arrive at your judgment following a particular course of treatment, et cetera, using reasonable care and skill. If your defense is that, use it. Saying you recognize it's not the normal way, the majority way, but this is what I was thinking. Lay it all out and maybe quote some literature. Show that there are other people who think this way, too. It's not crazy. It's not like you're out there in left field standing all by yourself. There's other people who would have done similar things. And if then you need an expert, you're going to find somebody who would share that minority rule opinion. So now let's go to statute of limitations. When are you on the hook for something? Actually, your most common defense in a medical negligence case is actually that they filed beyond the statute of limitations. That's called an affirmative defense. So your first thing when you read over the document that says somebody is claiming an act of negligence was committed by you on a date in 1999, and it's now 2014. So it's more than three years, so you now are thinking, I've got them. But if they just found out, for instance, that you left a sponge in their back, and it was 13 years after you left it in, and they just found out, and they're filing, that's acceptable, because it's from the time that they recognize that possible negligence was committed that the statute starts rolling. The other side of it is when they should have known. So if they should have known that something was amiss and that there was a possible act of negligence, the statute starts running at that time. So it's generally a three-year rule. That's the routine, but there are circumstances that could draw it out further. The 90-day rule I think I covered already. The 90-day rule helps the statute of limitations so that on the plaintiff's side, the plaintiff gets an extra three months. So if they're thinking that they're going to run up against the statute of limitations, they get 90 days free. So if all of a sudden they're coming to a plaintiff's attorney and the statute is going to run the following week, if the plaintiff's attorney sends a notice to the defendant, they get 90 more days. So they could end up escaping that statute running as the affirmative defense on the defense side by just sending a notice, not even absolutely filing the claim. But to commence in Washington, if you want to commence that suit, you don't just send the notice and say I'm going to sue you in 90 days unless I hear back, something that will get this case dismissed. The plaintiff attorney has to file it and serve it. So it has to be served by a process server on the defendant. That's again, I'm quoting Washington law because that's where I practice, but it's true for most states. So let's go to another term moving on, contributory negligence. What does that mean? Probably pretty intuitive. You might say, well, the patient did poorly and had an infection because it's their fault. They wallow in the mire at home and I did a perfect surgery and we never have any infections. The only reason they got infected is their fault. They have a horrible living circumstance. So you're blaming the patient and you're saying it's contributory negligence by the patient, which is why I'm getting sued right now and it's 100% their fault. Or you might say, well, I might be on the hook, maybe I could have done things differently, but it's at least 50% their fault because they didn't follow my post-op guidelines or they didn't take the right medicines and that's why they're here in court today. They didn't follow what they were supposed to do. So they contributed to the negligence, contributory negligence. But the bottom line is that you take the patient as they come. There's an eggshell plaintiff rule. So if you take somebody that's already got some built-in comorbidities and you're trying to now, after the fact, saying, well, their comorbidities are why they had an infection or why they became paralyzed. Diabetes was out of control, the hypertension was out of control, that's why they had a hemorrhage in their brain after I took out their tumor. But you took that patient on, you took the patient as they come, that's the eggshell plaintiff rule. So it's the same in motor vehicle accidents. If somebody's driving around in their car and they've got a cervical collar on and a cast on and they get into a fender bender and they complain of increased neck pain and or arm discomfort, the person who struck them is still at risk for causing the accident and can't just say, wait a minute, they were totally damaged, they shouldn't have been driving and it's all their fault and it's contributory negligence 100%. So the bottom line is that plaintiffs are taken as they come. You can't lean on them and their issues to try to get some of the blame off of them or all the blame off of you, sorry, onto them. So let's get into some defense management. I think we're going to be talking about that a little more. And again, it's good to hear it twice. If you're served, if there's no escape, there's a real case, what do you do? So once you know that there's an issue, let's say it's even before there's a medical negligence, case filed, but you know there's a bad outcome and you know it's going to end up in a lawsuit, be available to the patient and their families, communicate, communicate, communicate. First 30 days, you can say you're sorry, it's not discoverable, it can't be used as evidence against you. They teach courses now on how to say you're sorry properly, say you're sorry, commiserate, communicate, communicate, it'll save you enormous hassle because one of the key factors that has been found, and Mike will probably reiterate this, is that if you don't communicate well and the patient or the patient's family or all of them are mad at you for not communicating, that's going to be just a worst case for you that they might have dropped had you been human, had you been an empathetic person saying, you know, I'm really sorry that this happened, everybody tried their best, yeah, there was a very adverse outcome here, but you know, we did our best and I'm very sorry about what happened, we couldn't have done anything differently. For those first 30 days, you can say that. People want to hear that, you know, this is a human being communication business we're in, we're in service, and if they think of you just as a guy or, you know, a woman who wants to just cut and run, if there's a bad outcome and you don't come back and deal with the consequences, that's going to be held against you. So continue treating the patient and be more available than you ever thought you might have been had things gone well. Talk to them, commiserate, communicate. Don't just accept what a patient tells you, and if they start blaming you about a bad outcome, just don't accept what they say as accurate. Don't say things like, if I had seen you earlier, I could have helped you a lot more than now. Don't use terms such as negligence or malpractice. Just say, you know, we have a bad outcome here. Don't try to lay it on them. Just say, really sorry how things came out, really couldn't have been done differently. Regardless of what you're telling me now, don't just accept what they say. You can counter it saying, well, you know, that's just not the way the facts are laid out, and this goes back to charting. Chart everything. If it's not written down and you try to remember something and say, well, you know, I did tell you this could happen in informed consent issues or other things post-op that might have been a telephone call that you didn't chart in your electronic medical record, anything like that that escapes pencil or electronic medical record, and it's a valuable bit of information on your defense, it just will teach you that the more you put in the chart, the better it is X number of years later when it could be your word against somebody else's. So on that note, the medical record, if it's handwritten, which is disappearing, good and bad, it has to be legible. There's a lot of problems with electronic medical records, and there's plaintiff attorneys now who are making their entire legal practices on issues related to EMRs, so don't think that that's going to save you, because EMRs have their own share of propagating errors. So make sure everything is put in, and if it's a handwritten note or an electronic note, it's automatically timed and dated, but if it's not electronic, make sure you time and date everything. Don't put in things after the fact and try to change the date, or don't change anything ever. If you need to make an addendum, that's fine. If you need to edit something, that's fine. Remember that if you are found to have changed the medical record, the pendulum swings that everybody who looks at that case from the beginning to potentially in court, jury, you're going to be looked at as somebody who's trying to cover up something. It's going to be a nail in your coffin. So don't ever change a medical record without saying, this is an addendum to the above medical record that I'm adding on such and such a date at such and time, such and such a time for such and such a reason. That's totally acceptable. But to cross something out or, you know, use whiteout or the equivalent thereof, try to get rid of it, don't ever, ever do that.

medical negligence law

neurosurgery

malpractice lawsuit

proximate cause

standard of care

expert witnesses

record keeping