LITIGATION: LITIGATION:

CONTROL OR BE CONTROLLEDCONTROL OR BE CONTROLLED

A Proactive ApproachA Proactive Approach

Presented By:Presented By:

Gregory R. TravisGregory R. TravisThe Travis Law Firm, P.C.The Travis Law Firm, P.C.

1150 Galleria Financial Center1150 Galleria Financial Center5075 Westheimer5075 Westheimer

Houston, Texas 77056Houston, Texas 77056

104104THTH AAO Annual Session AAO Annual Session

Monday, May 3, 2004Monday, May 3, 2004

THE EFFECTS THE EFFECTS OFOF

LITIGATIONLITIGATION

How Litigation Affects YouHow Litigation Affects You PhysicallyPhysically

MentallyMentally

EmotionallyEmotionally

How Litigation Affects How Litigation Affects Your BusinessYour Business

GenerallyGenerally

EmployeesEmployees

ReputationReputation

How to Approach How to Approach Litigation Mentally to Litigation Mentally to

Overcome or Minimize Overcome or Minimize These EffectsThese Effects

Take Control of YourselfTake Control of Yourself

Take Control of Your OfficeTake Control of Your Office

Take Control of the Take Control of the SituationSituation

REASONS FOR LAWSUITSREASONS FOR LAWSUITS&&

LESSONS TO LEARNLESSONS TO LEARN

Reasons for Lawsuits:Reasons for Lawsuits: Refund Case/Fee ReturnRefund Case/Fee Return Bedside Manner: AttitudeBedside Manner: Attitude MiscommunicationsMiscommunications Informed ConsentInformed Consent ExpectationsExpectations Required PerfectionRequired Perfection Crazy Client: Screen, Refer & Crazy Client: Screen, Refer &

AvoidAvoid True Mistake: E&OTrue Mistake: E&O

PREVENTION OF PREVENTION OF LITIGATIONLITIGATION

Prevention of Litigation:Prevention of Litigation:

The Practice ItselfThe Practice Itself Records – Accurate and LegibleRecords – Accurate and Legible Informed Consent Informed Consent

-Doctor/Patient Relationship -Doctor/Patient Relationship -Doctor Did Not -Doctor Did Not Inform Patient of Risk Associated Inform Patient of Risk Associated with Procedure -with Procedure -Undisclosed Risk Occurred Undisclosed Risk Occurred -Undisclosed Risk Proximately -Undisclosed Risk Proximately Caused by DoctorCaused by Doctor

Prevention of Litigation:Prevention of Litigation:

Informed Patient/FamilyInformed Patient/Family Personality & AttitudePersonality & Attitude Problem PatientsProblem Patients Criticizing Other OrthodontistsCriticizing Other Orthodontists Doctor’s Duties Doctor’s Duties

-Cooperate -Cooperate -Assist -Assist

Litigation: A Brief Litigation: A Brief Overview of the Process Overview of the Process

and What to Expect Along and What to Expect Along the Waythe Way

Initial Complaint:Initial Complaint:

Informal: Patient ComplaintInformal: Patient Complaint

Formal: Demand LetterFormal: Demand Letter

What To Do and When To Do What To Do and When To Do ItIt

The Petition:The Petition:

FilingFiling

ServiceService

DISCOVERYDISCOVERY

Different Forms of Different Forms of Discovery:Discovery:

FormalFormal

InformalInformal

Formal DiscoveryFormal Discovery

Request for ProductionRequest for Production Request for AdmissionsRequest for Admissions InterrogatoriesInterrogatories Request for Disclosures Request for Disclosures

(Texas)(Texas) Deposition/Sworn StatementDeposition/Sworn Statement

Informal DiscoveryInformal Discovery

Everything Else Under the Sun – Everything Else Under the Sun – Outside of Formal DiscoveryOutside of Formal Discovery

Contacting Subsequent TreatersContacting Subsequent Treaters Contacting Third PartiesContacting Third Parties Obtaining Past Testimony From Obtaining Past Testimony From

Attorney NetworkAttorney Network InvestigationInvestigation

DiscoverableDiscoverablevs.vs.

Non-DiscoverableNon-Discoverable

EvidenceEvidencevs.vs.

Non-EvidenceNon-Evidence

SurprisesSurprisesvs.vs.

Non-SurprisesNon-Surprises

MOST COMMONMOST COMMONDEFENSESDEFENSES

Defenses:Defenses:

No DutyNo Duty No BreachNo Breach No CausationNo Causation No DamagesNo Damages Statute of LimitationsStatute of Limitations Proportionate ResponsibilityProportionate Responsibility Damage Caps?Damage Caps?

MediationMediation

What’s the Purpose?What’s the Purpose?

Description/CompositionDescription/Composition

Use and AbuseUse and Abuse

What to Expect from ItWhat to Expect from It

SettlementSettlement Consent IssueConsent Issue

On Whose TermsOn Whose Terms

What TermsWhat Terms

TRIALTRIAL

Trial: Basics and EssentialsTrial: Basics and Essentials

DefinedDefined

Rule: Those Willing and Able Rule: Those Willing and Able To Fight, Seldom DoTo Fight, Seldom Do

Corollary: Those Corollary: Those Unprepared to Fight, WillUnprepared to Fight, Will

Trial:Trial:

PreparationPreparation

What to ExpectWhat to Expect

AppearanceAppearance

AttitudeAttitude

LengthLength

APPEALAPPEAL

Appeal:Appeal: Reasons for AppealReasons for Appeal

Who May File and WhyWho May File and Why

What is Your Involvement?What is Your Involvement?

Plaintiff’s and Plaintiff’s Plaintiff’s and Plaintiff’s Counsel’s Perspective as Counsel’s Perspective as to You and The Litigationto You and The Litigation

Plaintiff:Plaintiff:

Feels Slighted, Hurt, Possibly Feels Slighted, Hurt, Possibly BetrayedBetrayed

Totally EmotionalTotally Emotional Familiar with Stories of Large Jury Familiar with Stories of Large Jury

VerdictsVerdicts Unfamiliar with the Litigation Process Unfamiliar with the Litigation Process

and All it Entailsand All it Entails Tires of the Process EasilyTires of the Process Easily Best Time to Deal with PlaintiffBest Time to Deal with Plaintiff

Plaintiff’s Counsel:Plaintiff’s Counsel:

Type 1: EmotionalType 1: Emotional

Type 2: BusinessType 2: Business

TYPE 1TYPE 1 Hates and Despises All Doctors Hates and Despises All Doctors

(Probably a Wanna Be)(Probably a Wanna Be) Views You ImpersonallyViews You Impersonally Believes Client Blindly-Believes Client Blindly-

UnquestionablyUnquestionably Doing God’s WorkDoing God’s Work Does not Prepare PlaintiffDoes not Prepare Plaintiff Punk – Difficult to Deal With, Easy to Punk – Difficult to Deal With, Easy to

BeatBeat

TYPE 2TYPE 2 Likes Most Doctors (Especially His Likes Most Doctors (Especially His

Experts)Experts) Knows that Everyone is Not PerfectKnows that Everyone is Not Perfect Profit DrivenProfit Driven Rational, Thoughtful, ReasonableRational, Thoughtful, Reasonable Prepares Client SufficientlyPrepares Client Sufficiently DangerousDangerous

Gregory R. TravisGregory R. TravisThe Travis Law Firm, P.C.The Travis Law Firm, P.C.

1150 Galleria Financial Center1150 Galleria Financial Center5075 Westheimer5075 Westheimer

Houston, Texas 77056Houston, Texas 77056(713) 626-3800(713) 626-3800