Post on 13-Jun-2020
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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)
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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)
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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
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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
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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
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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.
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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
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Deposition #1
Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D.
February 18, 2015
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Deposition #2
Brian Wilhelmi M.D./J.D., Eric Jackson M.D./M.B.A., Robert S. Greenberg M.D.
February 18, 2015
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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
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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
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Medical-Legal Simulation Wilhelmi, Jackson, Schiavi, Greenberg
February 18, 2015
How Serious Can a Simulation Be?
• Insert Video
February 18, 2015 56
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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…”
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• 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
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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.
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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.
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Know the Environment
Feb 7, 2013
February 18, 2015 67
Know the Environment
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• 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.”
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• 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
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• 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
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• 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
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• 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
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• 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