examining elements to prepare the pediatric practitioner · examining elements to prepare the...

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Mock Trial Examining Elements to Prepare the Pediatric

Practitioner

Brian G. Wilhelmi M.D./J.D., Eric V. Jackson M.D./M.B.A., Brian J. McNamara J.D., Robert S. Greenberg M.D.,

February 18, 2015

None of the presenters today have any personal financial interest in the

topics discussed today, nor will there be any topics discussed with a bias

towards services provided by any presenter.

Educational Objectives

• Upon completion of the workshop, the

participant will be able to:

– List key concepts and legal strategies inherent in

medical malpractice cases.

– Describe the key elements and benefits of disclosure

and avoidance of malpractice claims.

– Identify qualities found in an ideal defendant in a

medical malpractice case.

– Demonstrate testimony techniques in preparation for a

deposition or trial. 2 February 18, 2015

3

Legal Disclaimer

• Any information provided in this

presentation regards general legal

information and does not constitute the

provision of legal guidance or the formation

of legal representation.

• The case, and all its associated facts, are

completely fabricated for the purpose of

simulation and do not represent any actual

events or any institution’s experience.

February 18, 2015

Disclosures

None of the presenters today have any

personal financial interest in the topics

discussed today, nor will there be any topics

discussed with a bias towards services

provided by any presenter.

February 18, 2015 4

Ground Rules

• This is a learning environment.

• We are going to the heart of the matter.

• Participation is ENCOURAGED!

• What happens in Workshop….Stays in

workshop.

• Finally….This is only business.

February 18, 2015 5

Introductions

February 18, 2015 6

Robert S.

Greenberg

M.D.

Eric V.

Jackson

M.D./M.B.A.

Brian G.

Wilhelmi

M.D./J.D.

Why Provide Legal Training?

~National Statistics~

• 42% of Anesthesiologists over the age of 55 have

been sued at least once.

• 65% of those claims dropped and 25% settled

• 4.5% were resolved via Mediation.

• 5.0% were resolved via trial.

– At trial, Physicians on average won 90%, but outcomes are highly dependent upon jurisdiction.

– Cost of Defending Nonpayment Claim = $20,000

– Cost of Defending Winning Case to Trial = $100,000

7 Source: American Medical Association 2007-2008 Physician Practice

Information (PPI) Survey

Feb 7, 2013

Why Provide Legal Training? Our Recent Survey of ACCM Providers (N=117)

8

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

> 20

10 - 20

5 - 10

< 5

Percent of Practitioners in Experience Group

Years

in

Pra

cti

ce

Involvement in Litigation by Years of Experience

No Lawsuits

1 Lawsuit

>1 Lawsuit

February 18, 2015

Why Provide Legal Training? Our Recent Survey of ACCM Providers (N=117)

9

0 10 20 30 40 50 60 70 80

Percent of Providers Answering "Agree" or "Strongly Agree"

Years of Professional Experience vs. Self Efficacy < 5 yrs.

5-10 yrs.

10-20 yrs.

> 20 yrs.

25/32

7/11

10/16

23/50

13/32

4/11

8/16

9/50

24/32

7/11

11/16

16/50

Avoiding Negative Medical

Outcomes

Documentation

Avoiding Medical Malpractice

February 18, 2015

10

Why Provide Legal Training? Our Recent Survey of ACCM Providers (N=117)

I would like to receive proactive education/training to

reduce the likelihood that a negative medical outcome will

result in medical malpractice litigation.

February 18, 2015

11

Why Educate about Depositions?

Anesthesia is a Low Frequency,

High Damages Specialty

Feb 7, 2013

How Does an Adverse Event

Turn into Litigation?

February 18, 2015 12

Event

PREVENTION

• Safety Protocols

• Environmental

Safeguards

• Staff Training

• TimeOut’s

• Checklists

MITIGATION

• Family

Counseling

• Apology Law

• Debriefing

• Mediation

• Litigation

February 18, 2015 13

Opening Statements

The Case of

Larry Shelby

• 10 year old male presents for T&A.

• PMH: Asthma, 34 week gestation

• Meds: Albuterol

• All: Seasonal

• Exam: Mild Nasal Congestion and

mucous present in the larynx on

induction

February 18, 2015 14

The Case

• A Quick Hand-Off

• Resident Involvement

• The Routine Case at

a Critical Period

February 18, 2015 15

The Handoff

February 18, 2015 16

• Overhead STAT

• Confusion &

Commotion

• Critical Action

Required

February 18, 2015 17

The Emergency

February 18, 2015 18

• Transport

• Resident-Nurse

Handoff

• Timely Nursing

Evaluation of an

Unstable Patient

February 18, 2015 19

PACU Admission

February 18, 2015 20

• Recognition

• Emergency Code

• Team Dynamics

February 18, 2015 21

Rapid Response

February 18, 2015 22

• Critical Conversations

• Apologies

• Agreement on the Sequence of Events

February 18, 2015 23

Discussion with Family

February 18, 2015 24

How Should we Approach

the Initial Disclosure?

• Always consider a call to legal.

• Discuss the procedure and agree on a

sequence of events with the operating team.

• Introduce yourself to family.

• Discuss the procedure and the outcome.

• Tell what you know to be true, no speculation.

• Offer a sincere apology for the patient’s

condition, not causation.

• Discuss the plan of care moving forward.

February 18, 2015 25

Why Apologize and Disclose?

• What plaintiff’s want from litigation

– To receive an explanation.

– To prevent the same thing from happening

to someone else.

– For doctors to realize what they’ve done.

– The truth!

• What an Apology may Induce

– Reduce Lawsuit Initiation

– Induce Settlement

February 18, 2015 26

Service of Process

February 18, 2015 27

Medical Malpractice

• Tort:

– A wrongful act or an infringement of a right

(other than under contract) leading to legal

liability.

• Civil Court:

– Non-Criminal

– Win by a “Preponderance of the Evidence”

The Civil Court System

Anesthesiologists are Sued for the Tort of Negligence

Negligence: Conduct that falls below the standards of

behavior established by law for the protection of others

against unreasonable risk of harm.

Components:

1. Duty

2. Breach of Duty (Standard of Care)

3. Causation

4. Damages

Malpractice Case Timeline

30

Answer

Preliminary Motions

Complaint

Inciting Event Discovery

Depositions, Interrogatories, Expert

Witnesses, Records/Documents

Trial

Pre-Trial Conference

Settlement Offers

Outcome

Post-Trial Motions, Appeals

February 18, 2015

What is a Deposition?

The portion of a malpractice case

during which evidence in the

form of sworn testimony is

recorded for later use in the

courtroom.

31

A live question & answer session

that a provider can influence to

positively alter the outcome of the

case.

February 18, 2015

February 18, 2015 32

What is a Deposition?

Stenographer

Plaintiff’s Attorney

Defendant

Defandant’s

Attorney

Recorder

Understand Roles at Deposition

• The Deposition is not used to resolve a dispute. It

is used to gather information and accomplish

goals.

• The Plaintiff’s Attorney will:

– Test potential theories of negligence

– Test your desirability as a witness

– Make a record for subsequent impeachment

• The Defense Attorney will:

– Prevent improper question forms

– Make subtle suggestions on answers 33 February 18, 2015

• The Provider’s role at deposition is to

answer questions honestly and tactfully.

February 18, 2015 34

Understand Roles at Deposition

Communication Skills Matter!

*Mr. McNamara has agreed that all discussions had

during this presentation are strictly confidential.

February 18, 2015 35

36

Deposition #1

Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D.

February 18, 2015

37

Deposition #2

Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D.

February 18, 2015

38

Debriefing

Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D.

February 18, 2015

February 18, 2015 39

#1. Tell the Truth

February 18, 2015 40

#2. Be Professional

• Dress Conservative

• Control Emotions

• Avoid Teaching

• Provide Sympathy

• QUESTION: Have you been sued

before?

• INAPPROPRIATE ANSWER: I've had

no other lawsuits but I have reported

several incidents to my insurer that

never became suits.

• APPROPRIATE ANSWER: NO.

February 18, 2015 41

#3. Answer only What is Asked

• QUESTION: Given the ABG results of: pH = 7.21/

pCO2 = 70/ pO2 = 75/ HCO3 = 27, how do you

explain you explain the metabolic acidosis in this

patient?

• INAPPROPRIATE ANSWER: Well, that is not correct.

The data suggest that this patient had a respiratory

acidosis and the probable causes were....

• APPROPRIATE ANSWER: I am unable to answer

the question as you have stated it.

February 18, 2015 42

#4. Avoid the Natural Impulse to

Teach

• QUESTION: Doctor, wouldn't you have avoided

causing a hemothorax by placing an internal jugular

central line under ultrasound instead of a subclavian?

• INAPPROPRIATE RESPONSE: Well, yes, I guess I

could have avoided an arterial puncture under

ultrasound guidance….

• APPROPRIATE RESPONSE: In the circumstances

at the time, my decision was both clinically

appropriate and in keeping with the community

standard.

February 18, 2015 43

#5. Do Not Speculate

• QUESTION: Doctor, are you familiar with Miller’s text

on anesthesiology?

• APPROPRIATE RESPONSE: Yes, I am familiar with

it.

• QUESTION: Well, then, doctor, you recognize this

text as authoritative, do you not?

• INAPPROPRIATE RESPONSE: Yes.

• APPROPRIATE RESPONSE: It is one of many

useful texts.

February 18, 2015 44

#6. Avoid Legal Blunders

• QUESTION: Doctor, are you aware that when my client told his

current doctor that you performed the anesthetic that left you

with a CVA, Dr. Brown just rolled his eyes and shook his head?

• INAPPROPRIATE RESPONSE: Well, Dr. Brown has always

been critical of my work and is responsible for generating

several other lawsuits against me.

• APPROPRIATE RESPONSE: First, I was not aware of that. And

second, I know of no reason why Dr. Brown would act that way.

My care was completely appropriate and my patient's injury was

an unfortunate but known side effect of the procedure, which I

covered fully in the informed consent conference.

February 18, 2015 45

#7. Avoid Blame

• QUESTION: Doctor, please name any individuals

with whom you have discussed this case.

• APPROPRIATE RESPONSE: Aside from my lawyer,

I have mentioned that I have been sued to some

individuals and may have told them how I felt about it

but I have not discussed the facts or circumstances

of the case with anyone.

• APPROPRIATE RESPONSE: No one other than my

lawyer.

February 18, 2015 46

#8. Do Not Open New Information

• QUESTION: Doctor, isn't it correct that if the

physician uses reasonable care, this result (referring

to the patient's injury) does not ordinarily occur?

• INAPPROPRIATE RESPONSE: That's correct.

• APPROPRIATE RESPONSE: Although the result

may not ordinarily occur, when it does occur, it is

most often due to the inherent risk of the procedure.

February 18, 2015 47

#9. Do Not Testify Against Yourself

February 18, 2015 48

#10. Prepare to Encounter the

Patient/Plaintiff

49

Discussion

&

Thank You

Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert Greenberg M.D.

February 18, 2015

Is This A Likely Lawsuit?

February 18, 2015 50

February 18, 2015 51

The Deposition as a Learning Tool

1. Tell the Truth

2. Be Professional

3. Answer Only What is Asked

4. Avoid the Impulse to Teach

5. Do Not Speculate

6. Avoid Legal Blunders

7. Avoid Blame

8. Do Not Open New Information

9. Do Not Testify Against Yourself

10. Prepare to Encounter the Patient/Plaintiff

Simulation as a Training Tool

February 18, 2015 52

February 18, 2015 53

Simulation as a Training Tool

February 18, 2015 54

• Contextual

• Integrated

• Adaptable

• Real-Time

• Feedback

Simulation as a Training Tool

Complex Series of

Events in Sim Center

OR1: Completed T&A

Awaiting Transport to

PACU

OR2: Assistance Requested

(diversion)

PACU: Problems on Arrival

Parent Conversation

55

Medical-Legal Simulation Wilhelmi, Jackson, Schiavi, Greenberg

February 18, 2015

How Serious Can a Simulation Be?

• Insert Video

February 18, 2015 56

57

Medical-Legal Simulation Wilhelmi, Jackson, Schiavi, Greenberg

February 18, 2015

• American College of Legal Medicine

– The Medical Malpractice Survival Handbook

• Physician Litigation Stress Resource Center

– http://www.physicianlitigationstress.org/traversin

g_legal.html

February 18, 2015 58

Resources

February 18, 2015 59

Tales from the Dark Side

• Example:

– “When I reviewed the case again I felt so

horrible that the patient’s father died that I

decided to set up a trust fund for the

patient…”

60

• Example:

– “I stayed awake the night of the case and by

morning I felt I needed to call my patient’s

family and tell them where I had made the

mistake…”

Feb 7, 2013

Tales from the Dark Side

61

After Receiving a Complaint

• Alert Your Legal Department & Insurance Carrier.

• Find a Personal Counselor ~

Emotional/Financial.

• Do not Talk to the Plaintiff or Their Attorney.

• Do not Perform Actions that Implicate Guilt.

• Review the Record and Create an Account of

Care.

• Avoid the Temptation to Alter Records.

• See if Your Employer can get Your Name

Dropped.

Feb 7, 2013

Anesthesia Litigation USA

• 42% of Anesthesiologists over the age of 55 have

been sued at least once.

• 65% of those claims dropped & 25% settled

• 4.5% were resolved via ADR.

• 5.0% were resolved via trial.

– At trial, Physicians won 90%....but unknown what legal fees

were!

62 Source: American Medical Association 2007-2008 Physician Practice

Information (PPI) Survey

Feb 7, 2013

63

Why Educate about Depositions?

Anesthesia is a Low Frequency,

High Damages Specialty

Feb 7, 2013

Risk Management

“A planned and systemic process to reduce

and/or eliminate the probability that losses will

occur in a specific setting, and includes risk

identification and loss prevention, loss

reduction and risk financing.”

February 18, 2015 64

Prepare for Deposition

• Meet with your Attorney Early.

• Discuss the Use of a Trial/Jury Coaching

Specialist.

• Consider the use of videotaped practice.

• Practice a Deposition with your Attorney

One Week before Being Deposed, but not

the Night Before Deposition.

65

Feb 7, 2013

• Dress to Inspire Confidence in your Answers.

• Do not be Deposed in Your Office.

• Be Familiar with the Environment.

• Know Your Co-Defendants.

66

Know the Environment

Feb 7, 2013

February 18, 2015 67

Know the Environment

68

• Example:

– “Dr. Schiavi, if you say that Miller’s

Anesthesia Textbook is not an authoritative

source, why is there a copy on your

bookshelf?”

Feb 7, 2013

Tales from the Dark Side

Hit the Answer “Bullseye”

• Do not answer until you understand the

question fully.

• Think Before Answering

• Do not Blindly Accept Opposing

Counsel’s Framing of a Question

• It’s Okay to Say, “I don’t recall.” or “I

don’t understand the question.”

69 Feb 7, 2013

70

• Example:

Question: When did you finish your residency?

Inappropriate Answer: I finished by residency

at Stanford University Medical Center in 1987

Correct Answer: 1987

Feb 7, 2013

Tales from the Dark Side

71

• Example: Avoid Saying Too Much

Question: Have you been sued before?

Inappropriate Answer: I’ve had no other

lawsuits but I have reported several incidents to

my insurer that never became suits

Correct Answer: No

Feb 7, 2013

Tales from the Dark Side

72

• Example: Avoid Answering in Hindsight

Question: Couldn’t you have avoided a

Pneumothorax by using ultrasound?

Inappropriate Answer: Well, yes, ultrasound

would have helped.

Correct Answer: In the circumstances at the

time, my decision was both clinically

appropriate and in keeping with the

community standard.

Feb 7, 2013

Tales from the Dark Side

Know the Facts & Science

• Being wrong on medical knowledge can lose a

case.

• Research:

– Your Actions Surrounding the Incident

– Current Best Evidence Practices & Guidelines

• Realize that you are being “locked in” to a set

of facts that can be used against you later in the

deposition or later at trial.

• Documentation, while important, is not

everything. 73

Feb 7, 2013

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• Example:

– “Dr Smith, you said before that it is 200

yards to the PACU from the OR. Are you

now stating that PACU transfer takes 2

minutes?”

Feb 7, 2013

Tales from the Dark Side

Avoid Hypotheticals & Speculation

• Do not answer questions that are not related to

the facts of the case.

• Do not discuss the mindset of another co-

defendant.

• Do not reveal more facts than necessary to

answer the question appropriately.

• Speculation or thinking out loud often

invalidates the answer of “I don’t know."

75 Feb 7, 2013

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• Example:

– “Isn’t it true that a patient who was hypoxic

for 6 min. they would be more likely to have

an ischemic insult to their brain?”

Feb 7, 2013

Tales from the Dark Side

77

• Example:

– “When I reviewed the records I couldn’t

believe I would have allowed such a trend in

blood pressure…”

Feb 7, 2013

Tales from the Dark Side

78

• Example:

– “Dr. Johnson was an international specialist

in pancreatic surgery, his pompous attitude

provided the plaintiff’s attorney with easy

question fodder and ultimately resulted in

settlement of the case for a higher dollar

value…”

Feb 7, 2013

Tales from the Dark Side

February 18, 2015 79