Published 11/1/2010
B. Sonny Bal, MD, JD, MBA; Randy R. Cowherd, JD

The surgeon’s role in assisting defense counsel

By B. Sonny Bal, MD, JD, MBA, and Randy R. Cowherd, JD

Odds are that you, an orthopaedic surgeon, will be served with a medical liability lawsuit at some time in your career. The legal proceedings begin when the patient files a complaint with the local court, making you the ‘defendant’ and an unwilling participant in an unfamiliar and possibly intimidating process. Shortly thereafter, your medical liability insurance carrier will identify a lawyer as your defense counsel. This article presents tips and pointers for working closely with your attorney to reach a satisfactory outcome.

Some rules are worth remembering at the outset. First, do not contact the patient or the lawyer representing the patient. The patient is now an adversarial party; any contact with opposing parties should be through your defense counsel only. Second, do not alter anything in the records that pertains to the care of the patient. Third, avoid leveling your frustrations at your defense counsel; he or she is charged with understanding the case and developing a theory of defense. This critical task will affect the outcome of the lawsuit.

Working with you
Do not wonder whether your assigned defense counsel will be more interested in protecting you or your insurance company. The lawyer, even though paid by an insurance company, owes a duty of professional responsibility to you, the defendant surgeon. The situation is comparable to the doctor-patient relationship; surgeons work in the best interest of their patients, even though the surgeons are usually paid by an insurance company.

In some situations you may want to hire an independent counsel to represent you in addition to your assigned defense lawyer. An independent counsel can provide another source of legal advice and peace of mind and address concerns about asset protection, extent of liability exposure, business or practice interests, and other issues related to the lawsuit.

An independent counsel may also be helpful if a conflict arises with the insurance carrier about matters of coverage or settlement negotiations. Some conflicts may preclude your assigned defense counsel from offering advice either to you or your insurance carrier. These concerns can be addressed by private counsel. To help develop a theory of defense and navigate through the procedures and technicalities of a medical malpractice lawsuit, however, the attorney appointed by the insurance company will suffice.

Initial meetings
The early meetings with your defense counsel will probably focus on your educating the lawyer on the medical issues involved and doing some legal housekeeping functions, such as completing interrogatories, submitting documents, and answering a list of questions posed by the plaintiff’s lawyer. These are formal steps in the adjudicatory process and should be taken seriously.

Although paperwork is generally unappealing, successful defense of a medical malpractice claim demands the time, deliberation, and active engagement of the defendant surgeon.

The information you provide will help defense counsel understand the case and formulate questions. The exchange of information, which may seem laborious and unimportant, actually plays a significant role in the case because matters exchanged between adversarial parties can be used as evidence at trial, either for or against you.

The U.S. civil justice system is designed to encourage out-of-court dispute resolution. Through the discovery process—the gathering and exchange of factual information through interrogatories, depositions, and other mechanisms—it is hoped that the feuding parties can reach a meeting of the minds and resolve the dispute without a trial. Therefore, your answers to questions from both your counsel and the plaintiff’s attorney must be honest, complete, and forthright.

During your initial encounters with your defense counsel, you should get a feel for personalities and professional styles. You can explain your side of the story and brainstorm without reservation; information shared with counsel is confidential and not discoverable by the opposing side.

Focus on the complaint—the list of allegations contained in the actual lawsuit. Each allegation or complaint must be formally answered by the defense counsel; failure to do so on a timely basis can result in a default judgment for the plaintiff. The individual complaints must be answered with specificity and particularity; the defense counsel will help distill your side of the story to factual answers that are filed with the court.

Developing a defense
Once defense counsel has filed a formal answer to the complaint (in practice, this usually means denying all allegations), the adversarial system of dispute resolution requires that each party use discovery, depositions, literature review, and expert testimony for the following related goals:

  • to learn and understand the strengths and weaknesses of the other side
  • to develop a theory to support one’s own viewpoint and negate the other side’s arguments

As a defendant, you should think about the most plausible theories to refute or negate the alleged complaints. Investigate the literature and identify expert witnesses who will agree to review the record and testify in court. Don’t defer these tasks to defense counsel; although experienced lawyers can identify credible experts in the field, there is no substitute for an active and engaged defendant.

During the legal proceedings, some procedural steps may seem confusing and unsettling. For example, you may receive copies of letters updating the insurance company on the lawsuit. Insurance representatives may sit in during depositions and related activities. Defense counsel for any additional parties to the suit—such as a hospital, pharmacy, nursing home, or implant manufacturer—may attend depositions and raise objections for the record. The plaintiff patient may be present at your deposition, possibly with a family member.

Your counsel may send a letter indicating a willingness to settle the case; some jurisdictions require this procedural maneuver so you can preserve certain legal rights. Specifically, such a letter may bar the insurance company from suing you after trial to recover monetary damages in excess of the settlement offer. A settlement letter does not mean that your counsel has given up on the case; ask about any procedural steps that may concern or be unfamiliar to you.

Deposition tips
Be sure to discuss your deposition by opposing counsel with your attorney. Not all information is admissible at trial, no matter how much the plaintiff’s attorney asks. Plaintiff’s counsel may inquire about prior lawsuits, but that history cannot be brought up at trial, unless some narrow legal exception exists. For example, if the present lawsuit alleges missed compartment syndrome after anterior cruciate ligament reconstruction, and the last six lawsuits against the defendant-orthopaedist alleged the same complaint under nearly identical sets of facts, procedural rules might allow admissibility of this history at trial.

The goal is to focus on present facts and make the proceedings about the trial at hand only. But, as with anything else, exceptions exist; talk to your defense counsel to see whether an exception applies.

You should know what factual information your defense counsel has had excluded from trial by court motion or other pretrial mechanism. For example, if your hospital instituted disciplinary hearings against you, your defense counsel could argue that these proceedings could bias a jury and successfully move the court to exclude this information from trial, or the information itself may be privileged from discovery. If you volunteer that previous peer-review hearings were decided in your favor, you may inadvertently enable the plaintiff’s attorney to introduce unfavorable details of those matters to the jury.

Think twice
Remember that for every good argument there exists an equally credible counterargument. Think through the allegations from the plaintiff’s side; go through the mental gymnastics of argument versus counterargument, and use your medical knowledge to help your counsel present the strongest defense possible. This will also help you maintain a professional demeanor during an otherwise difficult and emotionally taxing process. Juries want to believe the physician, and the burden of proof is entirely upon the plaintiff.

In the U.S. legal system, the work of lawyers is not to find the truth, but rather, to provide the best advocacy for their clients under the circumstances. The trial of facts and the determination of the truth is a jury function, if the case ever gets to trial. How effectively a jury can find the truth is a function of advocacy and trial skills; a good defendant surgeon can help optimize these variables and influence the outcome of the case.

Trial preparation is arduous both for you and your counsel. You should read the testimony of all of the experts and doctors involved in the case and fully understand the nature of the theories of liability being alleged. By working as a team, you and your counsel can bring forth the arguments against those theories at trial.

Dr. Bal is associate professor of orthopaedic surgery at the University of Missouri in Columbia, Mo. He can be reached at balb@health.missouri.edu

Randy R. Cowherd practices civil litigation and appellate work with the law firm of Haden, Cowherd, & Bullock, LLC, in Springfield, Mo. He can be reached at rcowherd@hcblawfirm.com

Reference List:

  1. Jones DA, Lucas HK, O'Driscoll M, Price CH, Wibberley B: Cobalt toxicity after McKee hip arthroplasty. J Bone Joint Surg Br 1975;57(3):289-296.
  2. Long WT, Dastane M, Harris MJ, Wan Z, Dorr LD: Failure of the Durom Metasul acetabular component. Clin Orthop Relat Res 2010;468(2):400-405.
  3. Campbell P, Ebramzadeh E, Nelson S, Takamura K, De SK, Amstutz HC: Histological features of pseudotumor-like tissues from metal-on-metal hips. Clin Orthop Relat Res 2010;468(9):2321-2327.
  4. Browne JA, Bechtold CD, Berry DJ, Hanssen AD, Lewallen DG: Failed metal-on-metal hip arthroplasties: A spectrum of clinical presentations and operative findings. Clin Orthop Relat Res 2010;468(9):2313-2320.
  5. Medicines and Healthcare products Regulatory Agency. Medical Device Alert: All metal-on-metal (MoM) hip replacements. Reference MDA/2010/033. Apr 22, 2010.
  6. Davies AP, Willert HG, Campbell PA, Learmonth ID, Case CP: An unusual lymphocytic perivascular infiltration in tissues around contemporary metal-on-metal joint replacements. J Bone Joint Surg Am 2005;87(1):18-27.
  7. Langton DJ, Jameson SS, Joyce TJ, Webb J, Nargol AV: The effect of component size and orientation on the concentrations of metal ions after resurfacing arthroplasty of the hip. J Bone Joint Surg Br 2008;90(9):1143-1151.
  8. Shimmin AJ, Walter WL, Esposito C: The influence of the size of the component on the outcome of resurfacing arthroplasty of the hip: A review of the literature. J Bone Joint Surg Br 2010;92(4):469-476.
  9. Dastane M, Wan Z, Deshmane P, Long WT, Dorr LD: Primary hip arthroplasty with 28-mm Metasul articulation follow-up report. J Arthroplasty Jun 10, 2010. [Epub ahead of print]
  10. Guyer RD, Shimmin AJ, Maclennon B, et al: Abstract: 50 Early Failure of Metal-on-Metal Artificial Discs due to Metal Hypersensitivity: The Diagnostic and Treatment Approach in 4 Collected Cases. Spine Arthroplasty Society, International Society for the Advancement of Spine Surgery, 2009 Annual Meeting Proceedings, presented Apr. 30; 2009.
  11. Cavanaugh DA, Nunley PD, Kerr EJ, III, Werner DJ, Jawahar A: Delayed hyper-reactivity to metal ions after cervical disc arthroplasty: A case report and literature review. Spine Phila, Pa 1976, 2009;34(7):E262-E265.
  12. Berry MR, Peterson BG, Alander DH: A granulomatous mass surrounding a Maverick total disc replacement causing iliac vein occlusion and spinal stenosis: A case report. J Bone Joint Surg Am 2010;92(5):1242-5.