During the 2012 AAOS Annual Meeting, the AAOS Medical Liability Committee hosted an instructional course lecture designed to help orthopaedic surgeons understand what’s involved in constructing a medical liability case and how to avoid being the target of a malpractice lawsuit. “Anatomy of a Medical Liability Lawsuit: Practical Issues in Malpractice Avoidance,” included, among others, Byron Mitchell, JD, a defense attorney from Virginia, and Joseph L. Messa, JD, a plaintiff attorney from Philadelphia.

Mr. Mitchell explained how he prepares for a medical liability lawsuit and identified many of the pearls he has learned over the years defending physicians. Sharing many of the secrets that underlie a successful malpractice claim, Mr. Messa discussed the factors that influence his decision to pursue litigation. Both attorneys then participated in a lively question-and-answer session.

Thomas B. Fleeter, MD, chairs the AAOS Medical Liability Committee. He can be reached at bonedock@comcast.net

Speaking for the defense
Byron Mithcell, JD

Can you describe some of the common mistakes you have seen physicians make that lead to medical liability lawsuits?
The failure to keep accurate and complete records is a very common error that physicians make. Physicians should ensure that their records reflect that their reasons for treatment were explained to the patient and that the patient understood them. The patient’s chart should also include enough detail so that a colleague could safely assume the patient’s care, and that an expert could use the chart to support the physician in event of a lawsuit. The chart does not have to be perfect, but it should show that the physician’s actions were reasonable and well thought out.

Where does informed consent fit in?
Including a signed informed consent in the patient’s chart is advisable, but not sufficient. The consent should include all reasonable risks, probabilities of success, frequencies of risks, and any other reasonable alternative to surgery. Any conflicts of interest should also be included in the consent. Evidence of the informed consent discussion between physician and patient should also be in the chart.

How should laboratory and radiology test results be documented and reported?
If a test is important enough to order, it is worth getting the results, telling the patient the results, and documenting that discussion in the chart. Failure to communicate and document test results is a common feature in liability claims.

Have you seen cases where the treating physician should have referred the patient to a specialist?
I cannot be emphatic enough about not over-reaching. If a case is outside the physician’s comfort zone or experience level, it should be referred to a specialist. It may mean that physicians have to swallow their pride and admit that they don’t know it all, but referring an unusual case to another physician can save a lot of trouble in the end. Physicians should not be afraid to refer—no physician was ever sued for referring a patient to another provider. Yet, failing to refer is another common feature in malpractice lawsuits.

What about making changes in the medical record?
Physicians should never change the patient’s medical record, but they can make an addition to the record as long as the date and time are clearly documented. Changing the record can destroy the physician’s credibility and even jeopardize liability insurance coverage.

What other common mistakes have you seen physicians make that result in lawsuits?
Physicians should always check the summary sheet on the front of the patient’s chart for allergies and adverse reactions. Ordering a drug for a patient with a documented allergy can lead to a medical and a liability disaster.

How should a physician respond when complications or mistakes happen?
It is always appropriate to express regret that an unfortunate event occurred. Many states have laws protecting “I’m sorry” statements. The physician should not admit fault.

Do you have any other advice?
The value of personal relationships with patients cannot be overstated. A warm, compassionate, and caring relationship can make up for a lot of flaws. Physicians should sit down with patients and give them the necessary amount of time, without distractions. The 3 C’s—Caring, Compassion and Competency—are critical.

Speaking for the plaintiff
Joseph Messa, JD

How do you initiate a medical liability lawsuit?
First, I meet the client in person, obtain a synopsis of the complaint, and explain the lawsuit process to the client. I pursue fewer than 1 in 7 of the cases presented to me. The client is asked to obtain his or her medical records. Once I review the records, there is an opportunity to identify altered records as well. If the claim is considered to be viable, in-house physicians and nurses review it.

What specific elements do you look for in a claim?
The following three specific elements must be present to pursue a claim: negligence, causation (did the negligence cause the damage?), and significant damages. Before pursuing a lawsuit, I have to believe that the case can be won.

How do you find experts to defend the claim?
I use experts found through personal relationships—I don’t use commercial expert services. I meet personally, if possible, with all the experts before proceeding and prepare a summary of the case. The experts must be credible and not be “professional” experts. Preferably, experts are well-known clinicians and academicians who can explain the merits of the case in lay terminology.

After the lawsuit is filed, what are the next steps?

The suit is filed with a specific complaint detailing the facts in the case, written discovery with interrogatories of the key participants is prepared, document requests are sent out, and a full compilation of the records is assembled.

How do you handle depositions?

All depositions are videotaped—I am looking specifically for sound bites that will be useful at trial. During the deposition, I evaluate the temperament of the physician to gauge if he or she is good at handling direct questions, will be argumentative, or points fingers at others.

What suggestions do you have for physicians during
depositions?

In general, it is best to not hold the deposition in the physician’s office. Physicians should dress appropriately; be prepared and know the pertinent facts; give direct answers; not be argumentative or evasive; be aware of what the other witnesses have said; and not assume that the plaintiff’s attorney will not understand the facts. Most of all, physicians should keep their cool during a deposition.

How do you establish a dollar valuation of the case?
Economic damages are based on lost wages, medical bills, and future care needs. Noneconomic damages can be more vague.

What specific strategies do you employ during the trial?
I try to tell the story of the case through the defendant and the defendant’s witnesses. I try to get the defendant to admit that there was a patient safety violation. Experts are utilized to explain what the defendant did wrong and how patient safety was
jeopardized.

What factors during the trial tip the scales in your favor?
Factors that help the plaintiff’s side include a defendant who is unlikeable, who loses his or her cool, who is hostile or evasive, or who engages in finger pointing.

Why should physicians serve as expert witnesses for the plaintiff?
Physicians should testify on the plaintiff’s side as an obligation to patients and society as a whole. Physicians have an obligation to police their own profession.

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor David H. Sohn, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

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