Medical Malpractice: Anatomy of an Alabama Lawsuit and How to Cope When your Physician Spouse is Sued - Part One

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Medical Malpractice: Anatomy of an Alabama Lawsuit and How to Cope When your Physician Spouse is Sued - Part One

By The Alliance of the Medical Association of the State of Alabama and The Alabama Physician Health Program Malpractice Stress Syndrome by Gregory E. Skipper, MD, FASAM, Medical Director, Alabama Physician Health Program

The American Medical Association Board of Trustees has stated, “The biggest cost of suits brought under the malpractice system is the emotional injury that a physician experiences… .”1 The American Medical News 2 reported, “… medical malpractice litigation is one of the most, if not the most, emotionally devastating experiences a physician can have.” “Malpractice stress syndrome” can occur as a result of being sued. 3 This impacts not only the physician but family members as well, in what can seem to be an interminable process for which none of them are prepared. Symptoms are similar to the stages of grief: denial, anger, bargaining, isolation, depression, and guilt. These can affect both the family and the practice.

Although denial can be a useful defense mechanism to help a physician and their families cope with stress, it has risks. Physicians may delay reporting the claim to the insurance company, pretend that the litigation is not ongoing, and avoid preparing for depositions and trial. The family may also deny that they are worried about the lawsuit and avoid preparing for the prolonged stress.

Physicians may become angry when a suit is filed. “The feeling of impotence and desire to strike back are directly related to the anger phase and require creative and responsible outlets.” Anger may be directed toward oneself, other physicians, medicine, the suing patient (or even patients in general), and the family. 4

Charles and Kennedy (1985) have provided one of the most definitive studies of the emotional repercussions of malpractice. Many of the physicians surveyed reported isolation (yet very few sought support from peers), negative self-image (in particular feeling misunderstood, defeated or ashamed), development or exacerbation of physical illness, and subsequent depression. Depression may be fostered by the prolonged nature of the litigation, a sense of not being in control, and the associated helplessness that both entail.

The emotional process of undergoing a malpractice suit is associated with guilt. When the physician is served with a malpractice suit, it can signify a type of death – death of the physician’s naïve belief that because he practices good medicine he is immune to this type of legal redress. It signifies the death of the illusion that because he is a physician and is a kind and gentle and moral person, the patients all love him and wouldn’t dare sue him. 5 Guilt contributes to shame and a sense of isolation. If staff or family do not know what is happening, they often withdraw, resulting in a perception of lack of support. 6

Most physicians who go through litigation feel their families suffer as well. Most spouses respond to the suit with a deep sense of loss, financial vulnerability and social awkwardness. Often, physicians do not discuss their feelings with their spouse and family, attempting to shelter them from the stress. 7

The physician’s medical practice can be affected too. The physician may begin to view patients as potential litigants. Some physicians react by ordering extra tests, working longer hours, referring out difficult cases or losing focus. Some may develop burnout. (Burnout is a true syndrome characterized by emotional exhaustion, cynicism and depersonalization (treating people as objects).) They may also have an inability to process grief or losses because of emotional isolation. The sense of trust in the physician-patient relationship may be affected. In addition, rather than guaranteeing more time with patients, a suit may encourage a physician to spend more time with the patient’s chart 8. Physicians may become workaholics to compensate for perceived lack of competence or to prevail over fear of imminent dissolution of their practice.

The impact of malpractice litigation on the physician and the medical family is often overwhelming and difficult to process. In addition to publishing this booklet, AMASA and the Alabama Physician Health Program have teamed up to develop a support program for medical families that are suffering from the stresses of malpractice proceedings. Contact the Alabama Physician Health Program at (334)954-2596 [in Missouri, contact MPHP at 800-274-0933] or email alabamaphp@usa.net, [mphp@sbcglobal.net] ... to learn more about this program, contribute ideas, or to become more involved. If you have experienced a malpractice suit and are willing to be available to assist others please let us know.


 

1 Midwest Medical Insurance Risk Management Committee (1997), Malpractice: the hidden emotional costs. South Dakota Journal of Medicine 50(4):121-123. 2 Skelly FJ (1994), Scope of stress. American Medical News Nov. 7:21-25 3 Reading EG (1986), The malpractice stress syndrome. N J Med 83(5):289-290

4 Gunter 1990 5 Gunter 1990 6 Charles, 1986 7 Midwest Medical Insurance Risk Management Committee, 1997 8 Patrick, 1988


 

Anatomy of a Lawsuit

(This section is addressed primarily to the physician for ease of writing; however, many of the points will be important for the spouse to understand the process.)

 

What Happens When A Suit Is Filed

All legal actions involve many procedural steps. However, the steps in any malpractice claim vary from state to state, jurisdiction to jurisdiction, as well as by the physician’s insurance carrier. Many legal terms used in a case may differ from medical terms physicians are familiar with. One term may mean something in the medical context and yet mean something entirely different in the legal context.

Certainly, some medical malpractice cases involve a patient who was not given adequate care. However, in many cases, a medical malpractice claim is brought when the care given was acceptable. Patients or their families may bring claims when there has been an unexpected outcome or complication of treatment. Patients often need a target for their frustration and the physician can become the focus of this frustration or other emotions. In many cases there has been inadequate or poor communication and lack of rapport. Physicians’ attempts to collect medical fees have also triggered malpractice claims.

A malpractice lawsuit begins when a disgruntled patient believes that a physician has caused him an injury. (The patient may be a minor and the suit brought by a parent or guardian. The plaintiff may also be the estate in the event the patient is deceased.) The patient then consults an attorney to review the case to see if the attorney thinks the patient has a worthwhile or “legitimate” claim. Because most malpractice plaintiff attorneys work on a contingency basis, their fee is a percentage of what the plaintiff (patient) wins. An attorney will usually only take a case if he feels there is a good chance of receiving a favorable verdict (because the attorney makes no money if the plaintiff looses). The attorney’s assessment of the probable outcome may not have anything to do with the medical care given; it may simply be a belief that a bad medical outcome could generate a “sympathy verdict” from a jury. Nor does this mean the attorney believes the case will go to trial. Some cases are settled and never go to trial.

In almost all instances, the patient’s attorney will seek a copy of the medical records with a medical release signed by the patient. The plaintiff’s lawyer will likely be sending the records to a physician for him to review and issue an opinion as to whether medical malpractice occurred.

What Does A Patient Have to Prove in a Medical Malpractice Case?

A plaintiff (patient) must prove four things in order to show that a physician committed medical malpractice. These are the legal elements and the terminology is largely legalistic, not medical. A physician does not consciously think about his treatment in these terms.

1. A physician-patient relationship existed and the physician had the duty to provide treatment that met the Standard of Care.

• A physician-patient relationship existed.

Generally, the physician-patient relationship is a result of a mutual, voluntary agreement. In some cases an agreement may arise when a person is taken to a hospital for emergency treatment. If there are any doubts about a relationship, this question is usually answered by a jury. This is not where the bulk of litigation is generally concentrated.

• The physician owed the patient a duty.

Even if a physician is not paid for the services, a duty is owed to a patient once the physicianpatient relationship is established. This duty is to provide care to the patient which is consistent with the “Standard of Care.” ... Some factors which could be considered in this area are:

1. Learning and skill

2. Reasonable care and diligence.

3. Keeping abreast of recent medical developments.

In other words, did the physician’s treatment equal what any other good and competent physician in his field would have done? This is heavily litigated, as the patient’s attorneys, using experts, will usually try to show that the care given was not what a good competent physician would have done and not the standard of care that should have been given. This point is usually a more significantly contested issue in a case in which clear liability is lacking.

2. There was a “breach of the Standard of Care” and this breach “caused” the injury.

Breach of the Standard of Care is a legal term. Before liability is established, proof must exist that the physician did not give care consistent with the Standard of Care and that injury occurred to the patient as a result.

The Standard of Care (what the physician should have done) is argued using expert witnesses. If a case goes to trial, a witness (generally a physician) will argue that the physician should have done something differently to adhere to the appropriate Standard of Care.

3. Causation

The physician’s actions or lack of actions (breach of the Standard of Care) caused the damage to the patient.

The cause of injury is also heavily litigated. When a case goes to trial there will be an expert witness who is willing to testify that this breach of the Standard of Care caused the patient’s injury. This negligence, or breach, does not have to be the only reason that the injury occurred. It only has to be a substantial factor in producing the injury. The patient’s attorney only has to prove “within a reasonable degree of medical certainty” the defendant physician caused the injury. The exact cause of an injury can be difficult to identify. Often an injury will be the result of several contributing factors.

4. The patient was damaged or injured.

Procedural Steps in Litigation of a Medical Malpractice Case

Initiation of the Lawsuit:

Once an attorney has decided to take a case, he drafts the complaint against the physician and files it with the clerk of the court. The patient/plaintiff may name more than one defendant in the suit. The physician is then served with a copy of the complaint and a summons to appear before the court to answer the plaintiff's allegation or otherwise answer within a certain time period. This is called Service of Process and may be done by a sheriff. It may be the first notice that a physician receives that a patient is bringing a claim.

The physician must contact his insurer immediately. At this point, the physician’s attorney assigned by his malpractice carrier will become actively involved. The attorney will answer the complaint or file a motion to dismiss. Courts rarely dismiss a complaint based solely on the defendant’s Motion to Dismiss. The physician’s attorney may also file a motion requesting the patient file a new complaint with a better description of the alleged claim. A failure to respond to the complaint will result in a default judgment against the physician. Therefore, it is imperative that the physician and his attorney strictly adhere to the specified deadlines.

Discovery:

The process of allowing each party to the case to obtain records and information about the case from the other side is called discovery. Once the complaint is answered, both parties begin the process of discovery. This is achieved through the use of interrogatories, requests for production of documents, depositions, and requests for admission. These tools are used prior to a case going to trial.

The physician’s attorney will review the case to see how substantial it is and how defensible it is. The physician needs to be aware that the attorneys are not physicians and will need assistance in reviewing the medical information and in formulating questions for experts. In all cases, the physician should be prepared to teach the attorney what he needs to know in order to be able to defend the case. Once the physician and attorney agree on a defense strategy, the physician should search the literature for any pertinent material and be ready to supply all he can to his attorneys. This is a very important time in developing the strategy that will be used for defense and the physician needs to be involved.

Most importantly, the physician needs to think about the case so that he or she can honestly and candidly answer his attorney’s questions.

Tools of Discovery:

1. Interrogatories: Interrogatories are written questions that must be answered by the party to whom they are directed. They are usually used to obtain basic information about the case. The answers are binding in a court of law.

2. Document Requests: The patient’s or physician’s attorney asks for documents that are relative to the case. Examples include: patient’s medical records, and physician’s credentials, hospital privileges and practice history. Not all documents that are requested are necessarily produced.

3. Depositions: A deposition is a procedure that is conducted under oath and involves a question-and-answer session of any party of witness. The questions and answers are usually recorded by a court reporter and typed into a booklet form. Each party to the case has a right to be present during depositions of other persons. The physician can be a valuable resource for the attorney in formulating questions and ensuring that enough information is asked and answered by the person being deposed, especially when the witness is another physician or in the medical field. Because the deposition may be used in court, the attorneys will try to commit the party/witness/expert to as many facts and opinions as possible. Involvement in the deposition process will help the physician feel he has some control over getting the information needed to mount his defense.

4. Motions: Many types of motions may be made prior to trial. A motion is a request by a party to the trial judge. Motions in Limine may be filed to prevent certain evidence from being introduced at the trial. Motions may be filed to establish procedures that will affect how the trial is conducted, such as a motion to have all the witnesses sequestered so that they do not hear each other’s testimony. More often, motions are used to narrow the issues at trial and prevent unrelated or prejudicial information from being admitted into evidence.

Pre-trial Conferences and the Pre-Trial Order:

Prior to a trial, most judges will hold a pretrial conference with opposing attorneys. The purpose of this is to help organize the case by determining what motions need to be ruled on, what agreements can be made to narrow the issues for trial, and what procedures can be agreed upon to provide a smoother trial. It is also used to facilitate any settlement discussions. A pretrial order is often prepared by the attorneys for each side to aid the court in narrowing the issues to be tried.

A decision will have to be made whether to try the case or settle, and can be made at any point in the process. Individual insurance policies usually dictate whether the physician has a right to refuse settlement and insist upon a trial. If a decision is made to go to trial the physician must be prepared to testify. Physicians may find this to be the hardest time to stay calm, yet it is the most crucial time of all.

We gratefully acknowledge the kindness of the authors to allow us to re-print this article. Future newsletter issues will include information about the trial, the role of the physician during the trial, and information on coping at home for the physician’s spouse. If you are interested in more resources on this topic, we can provide a list of related articles. Please contact us.

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