Good evening, everybody. I'm Dr. Stacia Dierman, and I'm here tonight to talk with all of you in regard to a topic that really affects every specialty in medicine, the topic of malpractice litigation. What it's like, what the nuts and bolts are, how to navigate it, how to take care of ourselves through it. This, as I mentioned, is something that brings us together across every specialty. In fact, I am not a cardiologist at all. I have never pretended to be. I am a pediatric emergency physician. And I found my way into talking with other physicians about this topic after a very personal, very difficult experience of my own that raised my awareness to the fact that this is something that happens to us, and it isn't something that we talk about nearly enough. So I'm hoping that you'll find our session tonight helpful. I'm going to take you through a little bit of a slide presentation, sharing some thoughts that I want to share with you tonight, but I invite you to put any questions that might come up for you along the way into the chat box. And when we come to the end of my presentation, then Amanda Pettyjohn, who's helping me host this event, will help guide us through some Q&A. All right, so let's talk just a little bit about the risk that we'll be sued. You know, I think when we're in training and even beyond, we get a lot of messaging around ways we can prevent a lawsuit, and those things are very important. I don't think we get enough information about really the very large percentage of us who are sued over the course of our careers. The best study that I've seen regarding the subject of what our risk is of being sued is actually getting kind of old, but there's nothing like it that has superseded it in the last 15 years. This study was published in the New England Journal of Medicine in 2011, and in this study, people at Harvard used data from a large national indemnity carrier serving 40,000 physicians, all of them in private settings, meaning not government-employed physicians, but otherwise in all kinds of settings in every specialty in all 50 states, and this data was collected over something like 15 years. And what they found was that physicians in what they call the low-risk specialties, this would be like your general pediatricians, your general psychiatrists, maybe your family physicians, stand a 75% chance of being sued by the time they reach the age of 65. People in the high-risk specialties, a 99% chance. Well, that to me is like 100% chance, right? And in fact, in many of those high-risk specialties, there's a very high chance that a person will be sued more than once in the course of their career. So I think it's important that we have a sense for how these things flow, what to do if we think we might be sued, how to take care of ourselves through the process. And I think it's important that we understand that at least according to this study's data, which, as I said, is getting a little bit old, but I think, you know, although these things fluctuate, the process of malpractice litigation certainly has not faded away in the United States. I think it's important to understand that according to their data, in any given year, 7% of physicians in the U.S. were named in a lawsuit. And those lawsuits average something like one and a half to four years in duration. So you can figure that at least 10, maybe 15% of your colleagues are in the middle of a lawsuit at any given moment. I say that to say it's up to us to support each other and to look out for each other through the process. So we're going to frame things tonight in terms of a map and a compass. I think of the map as being an external guide. And what we're going to do is start by looking at the nuts and bolts of malpractice litigation. And I'm going to start from a place of assuming nothing. So some of what I say might feel like bread and butter to some of you and unfamiliar to others. But I think it's important to recognize that there are many physicians who practice in the United States who, in fact, were raised and educated in other parts of the world where the justice system functions entirely differently. And even those of us who grew up in the United States, unless we have lawyers in our family, we frequently have had very little interaction with the legal system. And we feel like we just know nothing when we encounter a lawsuit. So let's start by identifying who the players are in a malpractice lawsuit. First of all, there's the plaintiff. Now, this may be the patient who feels that they were injured due to malpractice. Or it may be a family member or someone representing the estate of the plaintiff if they've died. And then there's the plaintiff's attorney. This is the attorney representing that party. They're frequently also called personal injury attorneys. And together, that actual plaintiff and their attorney may get lumped together. And you may hear defense attorneys, for example, refer to the plaintiffs or plaintiffs. And when they use that term, they may be referring to both the actual plaintiff and their legal counsel. Then there's the defendant. So when I was named in a medical malpractice lawsuit, I became a defendant. In this particular instance, I was the lead defendant. I was the one the most in the hot seat. But I was not the only defendant. Two other physicians were named. They had been involved in the patient's care, one before me, one after me. The health system I worked at was named. And the large multi-specialty group that contracted with that health system, that specialty group that I was a part of, also was named. So in the case of my lawsuit, there were five defendants. Then you have the defense attorney or attorneys. Sometimes there will be one attorney or maybe a team of two or three who represent all the defendants together. Other times, there will be separate attorneys working on the case on behalf of separate defendants. And this particularly will be the case if those attorneys or the indemnity carrier feels concerned that there may be any kind of a conflict of interest created by one attorney representing more than one party. So in the case of my lawsuit, I actually was represented by a team of two attorneys who consistently worked together. They were from one firm. The other individual defendants each had their own defense attorneys. And then there were people there on behalf of the group and on behalf of the hospital. Now, all of these attorneys had an interest in this case unfolding in the best possible way. So there certainly was some interaction among them and, you know, all kind of pulling in the same direction. But they were representing us separately. All of these cases, whether or not they ever go to trial, will be assigned to a judge. Now, the function of the judge is not to decide the outcome of the case. The function of the judge is to make sure that the case moves forward in conformity with the law and best legal practice. If it does come to trial, the judge has a responsibility to make sure that things that are happening in the courtroom conform with proper legal practice, that the attorneys are behaving in legal ways. For example, they have to respond to objections that the attorneys may raise. There may be pretrial motions that this evidence be excluded or that testimony be excluded. The judge has to make decisions on all those things. And they're going to help set a timeline, for example, for the period of discovery or other matters. So we'll talk more about the judges. But the most important thing I want you to know is that they do not decide the outcome of the case. They guide it through the process. If a case goes to trial, there will also be a jury. These are lay people. Typically, attorneys have the opportunity to eliminate certain individuals from the jury pool. And they frequently will make an effort to eliminate people who have a background in health care. And while physicians will frequently comment that they find it distressing that although we call it a jury of our peers, the jury is not made up of our actual peers, our fellow physicians. Many, many defense attorneys feel that lay jurors, intelligent lay people, are more forgiving of physicians than other physicians are. So I would not assume that it's a bad thing that the jury is comprised of lay people. The jury, I should further elaborate, they are the ones who have the responsibility. If a case goes to trial, they have the responsibility of listening to all the evidence presented to them, including testimony on behalf of experts who represent both sides, and as a group, weighing things out and coming back to the judge and the courtroom as a whole with a verdict. So they are more the decision makers on the evidence, while the judge is the decision maker with respect to legality and legal process. So it's important for you to understand that if you are accused of committing medical malpractice, you have not been accused of a crime. This is not a type of criminal lawsuit. It's a type of civil litigation. And what we've been accused of, if we're accused of malpractice, is a breach of contract. So a breach of contract is something that can apply to many business situations. Although we as physicians or other clinicians do not think of the healthcare we provide necessarily as a business transaction, we're not comfortable, and I think nor should we be comfortable viewing it in those terms. That is how the law approaches this. So as an example, if you hired an electrician to come into your home and do certain work for you, and you trusted their expertise and got their opinion about what needed to be done, and they did the work, and you paid them to do the work, and then you had reason to believe that the work had not been done in the way it should have been done, it wasn't done safely or they didn't do what they said they were going to do, you have recourse by filing a lawsuit. They have breached their contract with you. A medical malpractice lawsuit is a very similar kind of lawsuit. One thing that is very important that sets civil litigation apart from criminal litigation is that criminal litigation operates under the standard beyond a shadow of a doubt, whereas civil litigation holds a different courtroom standard. In civil litigation, the standard is, quote, a preponderance of the evidence, meaning that there is a greater than 50% likelihood, based upon the facts and the expert testimony, that things went one way or the other. So if, for example, in a medical malpractice case, the jury hears all the evidence and they conclude that it's 51% likely that what the plaintiff is saying is correct, then that verdict should go for the plaintiffs. If they conclude it's 49% likely that what the plaintiffs is claiming are correct and 51% likely that what the defense is claiming is correct, that verdict should go for the defense. So what if you're in a situation where you think a lawsuit may potentially be filed against you? This is an instance where many of us can feel afraid. And I think when we're afraid, sometimes we don't make the choices we would make if we weren't in a situation of feeling threatened, feeling a little bit of a fight or flight response. But it's in these situations, I think that we have to lean really hard into our character and to know what into doing what we know to be the right thing to do and hold some faith that making every effort to do the right thing will serve us the best in the long run. So what should you do if you're afraid you'll be sued? Well, the first thing that you need to do is to continue to do whatever you can to ensure that the patient receives good care. That is the first and most important thing you need to do. Sometimes that may mean that you, you know, in a situation where you feel alarmed or afraid, you pull colleagues in to assist or you pull your partners in the office and ask them if there's anything else they're thinking of, is there anything else you should be doing for this patient? Or you pull in people from another specialty to assist, right? Whatever you need to do to ensure that that patient receives good care, you refer them out to another institution, whatever it is, go ahead and do those things. If you're worried a lawsuit may ensue, it's important that you immediately notify your risk manager if you're working in the context of a healthcare system, which I would imagine if you're practicing interventional cardiology, you have to be, right? You don't have freestanding cath labs, I'm sure. At least I don't think so. So you've got a risk manager, you need to reach out to them. And you also want to ensure that your malpractice carrier, or if you're working with a risk retention group, whoever's providing your indemnity insurance needs to know right away. There are a couple of reasons why this is. First of all, many malpractice insurance policies include a clause that stipulates that if you're aware of a potential case and you don't notify them, it may mean that they don't have to cover you. So you want to make sure to notify them. And you may feel nervous or ashamed to do that, but I have heard from many sources that they get many, many reports then actually turn into cases and they prefer to hear about it right up front. The reason why it's valuable for a risk manager and a malpractice carrier to be in the loop early is that they, first of all, may have the opportunity to take steps that will avert a lawsuit. And if that's possible, they'll want to do that. And they will begin to collect data right off the bat and store that data in a case file so that if a lawsuit does emerge down the road, they've got all their ducks in a row and can begin to provide you with the very best defense right off the bat. So reaching out to them protects you in very important ways, even though it can feel hard and kind of embarrassing to do that. In general, I want you to limit your conversations regarding the medical details of the case to those people who you need to have those conversations with in order to provide that excellent care or in protected settings. So if you do feel like it would be really helpful for me to it would be really helpful for me to talk with, you know, my colleague Frida over here about this case to get her input on what else she would think of or what I should do next, then by all means, do that. And feel free to document it in the record that you talked with so-and-so and explored these following issues. And you don't really see an opportunity to expand the differential diagnosis, you know, whatever you need to do to provide that care is a very legitimate thing to do. Protected settings would mean any kind of morbidity and mortality conference, any kind of patient safety conference or peer review or root cause analysis. In general, those sorts of settings are protected under the law in order to allow us to improve care. They're protected from legal discovery. So you can have conversations in those settings about what could I have done better? What do we think went wrong here? How can we improve this process? And that conversation will be legally protected. If you have that conversation with a random colleague, like in the elevator or in the doctor's lounge, you may find that eventually that conversation becomes discoverable or you get asked about it at deposition. Now, I know that in some instances, we need to have those conversations for our own sanity. So after a very unexpected and difficult case that I had involving the death of a young person, I knew I've got to tell my medical director. I was his assistant medical director and I knew he's going to find out I have to talk with him. So I talked with him about it and I talked with a colleague whose opinion I valued highly because I felt like I needed to know if there was anything I had missed. And eventually I was asked, who did I talk with? And I did say, I talked with those two people. And I'm grateful that I was able to say when I was asked, and what did they say? I was able to say, well, they said there's nothing they would have done differently and they weren't subpoenaed. But that's your lawyer's worry that those people you talk with will be subpoenaed. Other protected settings are your conversations with your spouse are protected, conversations with your own treating physician or a treating psychologist or psychiatrist who you might choose to see, conversations with your clergy person, should you have one, those are all protected. Conversations with your indemnity carrier, your risk manager, sort of the people at that level at your institution are also protected. I would encourage you, although you're going to limit discussions of the medical details of the case, I would encourage you to get the emotional support that you need. You don't have to discuss the medical details of the case in order to tell your best friend from medical school that you had a really hard case and you're really heartbroken. That is not wrong to do. And if someone down the road asks you who you've discussed the details of the case with, telling your best friend that this really sad thing happened in your work and a patient, you know, unexpectedly died and you're really suffering, that does not count. That is not a conversation that you're expected to reveal. It is not relevant to the medical details or the legal process or the medical decision making. So I want you to seek out the support you need. If you need to connect with a therapist or psychologist to talk about the stress of the process you're going through, I encourage you to really please go ahead and do that. And then it's one last piece that I think kind of ties in with ensuring the patient gets the proper care is sort of the professionalism piece of should you disclose what's happened to the patient or family? What about apologies? Apology statutes or protection for apologies varies from state to state, so it might not be bad for you to learn about what that's like in your state. And if you don't know, a risk manager or a good attorney at your hospital can tell you. So I would look into that so that you know in advance. But I will tell you that in general, the evidence seems to be that going to patients and families promptly to disclose that something unexpected happened or that this is absolutely not how you would have wanted things to go, but in the course of XYZ procedure, thus and so happened, the sooner and more kindly and transparently those sorts of things are disclosed to patients and families, the less likely they are to file a lawsuit. Having the sensation that we're hiding things from them is a very common reason for people to sue. So I wouldn't rush into telling people you're so sorry about the terrible thing you did. I would think very carefully about what to say and maybe kind of think through those things before you're in that difficult situation. But disclosure is very helpful to families and is an important piece of professionalism and medical ethics. This is one we've been hearing probably since medical school, but it bears reinforcing. You don't want to let fear drive you to tamper with the medical record after an adverse outcome has occurred. It's not uncommon for lawsuits to result from situations where the physician who was caring for the patient did not see whatever ultimately happened coming. And so that extremely rare possibility is not reflected in their original differential diagnosis or in their medical decision making. Do not go in and add it in after the fact. Do not do it. If you behave honorably, even if your record has gaps in it, your case will be much easier for you to defend by your defense lawyer than if your behavior appears to be dishonorable. Juries expect physicians to behave honorably. So just lean into it. If you didn't, you know, document a certain part of the physical exam, so be it. Let it be. A tip that I received before my own case ever happened that was very helpful to me was this. If you have a situation where you fear that a lawsuit may be filed, an option that you have is within the day or two or three after the event has occurred, you can write a letter, a confidential letter addressed, quote, to my attorney. Even if you don't have a defense attorney, even if you've never met one, you're going to write a letter to my attorney. And in that letter, I want you to summarize the events, ideally concisely, attorneys like concise, but I must admit my letter was kind of long. So you're going to write a summary of events and include their elements that would never be captured in a medical record and really shouldn't be. So things that might relate to the tone in the room or who else was in the room or the conversations that you had with them or the things that you now see that you wish you had included in the medical record or whatever you've got, put it in this letter. And then I want you to sign that letter and I want you to give it to your malpractice carrier, like a case manager, when you notify them of what's going on or your risk manager, you can ask at your hospital or your indemnity carrier, who should I give this to? And then they are going to take it. They're going to put it in the file that they're going to create and they're going to retain it. Sometimes it is years before lawsuits are filed. And if you've captured those things now, you won't forget them or be confused about them. The letter will be considered attorney-client communication and will be privileged in that regard. In my case, I wrote this letter. I provided it to the individual I was told to provide it to within my organization. And when I met an attorney, maybe 13 months later, he had already read my letter. So I think it's a great way for you to capture the details you need to capture, but you don't want to keep this record for yourself. I don't want you to create a private journal or any kind of parallel record for yourself because that then becomes discoverable. Your letter to the attorney is not open to discovery by the other side. So let's look at a timeline of these lawsuits briefly. On average, medical malpractice lawsuits extend over a period of about one and a half to four years, sometimes longer, not very often shorter. So I want you to know that these are kind of a long process and it's, I think, just best to know that going in. We're going to start over at the left with the incident. Now, the incident may be an incident that occurs or it may, you know, that was unfortunate, or it may be the moment at which the patient or their family realizes that something may have occurred. So if, for example, to go to another specialty altogether, let's imagine that a patient diagnosed with breast cancer, that it comes to her attention that a mammogram collected four years ago may have been misread. The incident begins now when she realizes the mammogram may have been misread, not at the time of that mammogram, okay? Once that incident occurs, the clock begins to tick on something called the statute of limitations. The statute of limitations basically is a period of time, it's generally a period of at least a year, maybe multiple years, during which a plaintiff may file a lawsuit in relation to some incident. Now, the statute of limitations may be longer in some circumstances than others. So in many states, you may generally have a statute of limitations of a year, but if it's a wrongful death case, if the patient died, then maybe it's two years. If it's a pediatric case, my pediatric friends, I am so sorry to say, the statute of limitations is often until that patient turns 18 or 21, depending upon the state. So the period of the statute of limitations can be quite a long time. But whatever it may be, if the plaintiff is going to file a legal complaint, it's got to be filed within that time frame. Once the statute of limitations expires, it expires. Once the complaint is filed, now the timeline gets a lot shorter, and we're thinking in terms of days. So if you or I receive notice that we have been named in a lawsuit, depending upon the state we're in, we generally have a period of about 28 days. I've heard in some states it may be 21, in some it may be 30, but a short period of time, a month or less, during which a response is required. And if no response is forthcoming, then the court may presume that you agree with what's been alleged. So it's very important that if you receive any kind of a notice that a lawsuit is filed against you or maybe about to be filed against you, that like I said, you reach out right away to your malpractice carrier. If a health system is involved and also may be named as a defendant, they may or may not already be aware of what's going on, but you need to make sure they're aware. They have defense lawyers who they particularly like to work with. They will typically assign you a defense lawyer, although if you know somebody you prefer, you're welcome to put that name into the ring and ask them to let you work with a particular someone. They may have their reasons for suggesting a particular defense lawyer, so kind of work with them on that. But you get a defense lawyer assigned to your case, and the defense lawyer responds on your behalf. Do not provide the response without a lawyer, okay? You need for them to do this for you according to the proper legal procedure and in the way that will best defend your case. Once that response has been provided, then the case moves forward with a case management conference, which will involve the judge, the lawyers. You will typically not be a part of this. They're doing things like setting timelines and, you know, setting up the mechanics, and the case moves into a phase called discovery. Discovery is probably the longest period of the lawsuit, and we'll talk more about what that entails. If a case will go to trial, there will be a pretrial meeting and then trial. Now, a very small minority of these cases go to trial. Most are either settled or dropped or a small proportion are mediated. Some people say these days that at 6%, others say 10% that go to trial, but it's a very small percentage. In my case, I did go to trial. It was very stressful, and that can be survived if that becomes part of your case. But more likely than not, you will not go to trial. Discovery is this phase in which the lawyers on both sides are seeking to unearth all the relevant facts and information that pertain to the case. And I think of them as a little bit as like archaeologists, right? Because, as I mentioned, sometimes these cases, the legal case, is moving forward even years after the original event that has now resulted in the lawsuit. So as you can imagine, it can be difficult to piece everything together. And that's why I say sending that letter to your lawyer if you're worried is a great thing to do. But in many cases, people don't anticipate that something will ever come up down the road, and so now everyone's trying to piece things together. The lawyers have several tools. First of all, they have the medical records, and they will unearth a lot of them. And with modern EMR, it's many, many pages that they're reviewing. Interrogatories are a type of written questions and answers that go back and forth between the two sides, and your lawyer may ask you to participate in crafting some answers to interrogatories, but certainly they will want to, you know, play an important role in making sure that the way they're worded works for the legal setting. It's another culture altogether, friends. They're going to garner expert opinions on both sides. They're looking to find experts, and what do we mean by experts? Generally, we mean people who are in active practice in the area or areas that relate to the case, sometimes multiple experts, multiple kinds of experts may be involved. In my case, you know, there were emergency physicians and pediatric emergency physicians and pediatric neurosurgeons and developmentalists, so a whole mix of people. And then depositions are a tool which are used to collect information about what happened. A deposition, I would say, is probably the most important piece of navigating the case that you or I as a defendant participate very actively in. A deposition is basically a conversation, but the thing that sets this conversation apart is that one person or certain persons, lawyers, ask all the questions, and one person who is the person being deposed has to answer those questions under oath. So it's important to understand if you are a deponent and you're answering those questions, you are the only one in the room or in the conversation under oath. The plaintiff's attorney can say whatever they want. They are not under oath. Only you are under oath, but it's an important oath. It's the oath we've all heard of telling the truth, the whole truth, nothing but the truth, right? And to not tell the truth under that oath constitutes perjury, and perjury is considered a crime. So you want to be very careful to prepare well for deposition and be prepared to tell the truth in the best way so that you don't take a situation of civil litigation and turn it into, you know, something worse. The deposition is considered an extension of the courtroom. It's as if you were on a witness stand, except that not all of these depositions and fact finding conversations can happen in the courtroom or the courts would just be completely overburdened. So but it is if you were on a witness stand, a transcript would be created at a deposition and that becomes part of the legal record of the case and can be brought back up should a case go to trial. Most depositions oftentimes, I would say, are video recorded, so that's something to be aware of. It I would say most commonly takes place in a conference room. Oftentimes that may be at your lawyer's office, could be at the plaintiff's attorney's office, although if that makes you uncomfortable, I would tell your lawyer that and ask them to host it at their office or somewhere else. Sometimes it happens in the hospital in a conference room, and again, if that makes you uncomfortable, I would tell your lawyer that. You need to be comfortable. And with the advent of the pandemic, oftentimes depositions started to be held over Zoom and sometimes they still are, although if you feel that you are likely to give a much better deposition face-to-face in person than over a technology like Zoom, I would tell your lawyer that. Use the power that you have to try to set this up in the way that will work the best for you. Strategies for deposition. You really need to prepare. First of all, prepare wisely. What does that mean? That means you're going to ask your lawyer what they want you to review for your deposition and you're going to review nothing else. So in my case, my lawyer asked me to review my medical record and nothing else. No one else's medical record, no medical literature, not up to date, nothing. My medical record. Nothing else I might have reviewed should I have chosen not to follow his fine advice would have been open to discovery. So one of the first questions you're likely to be asked at deposition is what you have reviewed in advance of the deposition. And you need to tell everything you reviewed in preparation for the deposition. So if your lawyer says, I want you to review the medical record and these other three depositions that were taken, then you're going to review all of that very well. And you're not going to skimp. You're just going to do it well. But if they say only this, then you're only going to review this. Preparing well can mean a couple of things. First of all, there are ways to learn about deposition. There are books you can read about deposition should you want to do that. I have a video CME course that's available online designed to teach physicians about deposition. You can use that as a tool. And then you're going to meet with your lawyer. And you want to meet with them until you and they both agree that you're ready. I've known people whose lawyer has said, I think you're ready. But the person, the defendant, doesn't feel like they are. And I've advised them, well, you need to tell your lawyer that. Tell them English isn't my first language. I need more practice. And preparing for deposition is one of the most important jobs your lawyer has. Once you get there, it's important that you be truthful. And your lawyer or other resources, CME courses and whatnot, will help you to understand what being truthful means in the legal context. And I know that sounds sort of weird. But what it basically means is that you need to answer exactly the question you're asked. You're not going to veer off into other areas unless your lawyer has advised you that you need to get this out there. You're going to answer exactly the question you're asked, and you're going to do so truthfully. So you want to be brief. You want to keep your eye open for any absolutes. So you know how on multiple choice questions, we all were taught that if the question involves a never or an always, you're going to kind of watch out. Like, very little in medicine is never or always. That's also true at deposition, that if that plaintiff's attorney is throwing in never or always, you need to stop and say, is that really true? And find a way to answer that doesn't put that absolute in there. They're doing that for a reason, and they're looking for a way to trip you up. The other thing you need to do is to not speculate. So when we talk about what happened, you maybe ask a deposition, what do you think happened? If you don't know what happened, don't hold a conversation like you would hold with me or another physician colleague where you're saying, well, you know, maybe it was a PE or maybe, I don't know, maybe an arrhythmia. I really don't know what happened. What do you think about, maybe it was that calcium channel blocker. None of that is relevant at deposition. Unless you absolutely know, you say, I don't know, I don't know, and that is truthful. That is absolutely truthful. So do not, do not speculate at all. Now people will sometimes say, if it's not in the medical record, it didn't happen. But that is not entirely true at deposition or in the legal process at all. You can truthfully testify to three things, what is in the medical record, what you actually remember, whether or not it's in the record, and your routine. So if let's say in my context, I were going to do a lumbar puncture and I failed to document that I sterilely prepped and draped my patient, and that is not in my chart, at deposition, I'm going to say, of course, I sterilely prepped and draped. That is always something I do. It's part of my routine. All right. Settlement, we talked about the fact that many more cases settle than go to trial. What is a settlement? It's a negotiated agreement for a monetary settlement. All these cases are about money in payment for damages. That's why they filed a lawsuit. So it's a negotiated agreement for a monetary settlement that goes, is negotiated between the plaintiff and their team and one or more of the defendants. The terms of settlement are typically negotiated by the lawyers on both sides with input from their clients, that would be like the defendants or the plaintiff, and from the insurance company which may or may not make that payment. There are pros and there are cons to settlement. A huge pro is that it brings the lawsuit to a close and the stress of the lawsuit is resolved because these lawsuits are very stressful. It may be beneficial even in instances where the defendant feels certain that their care was appropriate. It reduces stress for that defendant. You may feel like, I can practice better medicine without this stress hanging over me like a cloud. And in some instances, it may just feel like the right thing to do. It also provides greater control for the defendants and the indemnity carrier over the amount of the payout because if a case goes to trial and the verdict happens to not go in favor of the defendant, then the jury becomes involved in deciding the payout, the court personnel become involved there, and the lawyers don't have control over it anymore. Any payout requires a report to state medical board and the National Practitioner Data Bank, but the National Practitioner Data Bank notes that payment in settlement of a medical malpractice claim shall not be construed as creating a presumption that medical malpractice has actually occurred. Cons. A payout in a case where your care was appropriate can sometimes feel distressing to people. And as I said, all the payouts must be reported to the National Practitioner Data Bank and the state licensing board. The only exclusion there would be if you're named as a defendant and then dropped before, well before a settlement is negotiated. If dropping you is a term of the settlement, it's still got to be reported. It's worth knowing that multiple payouts over time depending on your specialty will sometimes impact areas, will certainly impact insurance premiums for people who are paying their own premiums and it may impact areas like credentialing. What do you do if the insurer or what do you think if the insurer wants to settle and the defendant doesn't? Well, I would try to get a good feel from them for why they want to settle. They may have experience with similar cases and maybe even similar cases in your particular jurisdiction, right, because some areas geographically are more litigious than others and they may have a feeling for we can settle this for a much smaller amount of money than we think it will cost if we go to trial. Many malpractice insurance policies contain what's called a consent clause and it's probably worth your while to know whether yours does or does not contain a consent clause. A consent clause guarantees that the insurance carrier will not agree to a settlement without the consent of the insured person. You may, if you are an employed physician like with a large healthcare system that self-insures, you may find this matter addressed in your employment contract. There's a caveat I want you to be aware that some insurance contracts, this is, you know, from less savory insurers, granted, will contain what is called a hammer clause. So you want to know if that's true for you. Should you find yourself in the middle of one of these lawsuits? You don't have to know tonight, but if you're buying insurance, it's worth knowing. A hammer clause states that if the insurer recommends that you settle and you decline to give consent to settle, then you yourself, from that point forward, become personally responsible for the costs of defending the case. So I advise that you not do that. This no malpractice case is worth, you know, spending tens or hundreds of thousands of your own dollars to defend. If you're in a situation where the only way to have the cost of defending your case paid by your insurer is to go ahead and follow their recommendation to settle, then settle. If you find that you disagree with them and they're saying, okay, well then we'll go forward. I want you to confirm that they will continue to cover your expenses before you make that choice. Generally, they will. What if things do go to trial? What must plaintiffs show there? They've got to show that you had a duty to provide care. Now sometimes that's very easy. Patient comes into my ER, I walk in the room and see them. I had a duty to provide care, but it gets a little more complicated if you're part of a group where a result came in while this person's on vacation and that person's covering and should they have seen it, right? So sometimes it's a little more complicated than it seems, but they've got to prove that any given defendant had a duty to the patient. They've got to then prove that that person deviated from the standard of care. The person who had the duty deviated from the standard of care. How does the legal system define the standard of care? We know that the standard of care for any given condition and especially rarer conditions is evolving all the time and may vary geographically. The way the law defines a standard of care is what another reasonable physician, not the perfect physician, what a reasonable physician would do under the same or similar circumstances, would do or would have done, and who defines that? These experts who come in from the outside come in to say, oh, what this person did here, what Dr. Joe did was reasonable, and many other physicians would do that under the same circumstance. If they are able to prove that to the satisfaction of, let's say, a jury, that what you did is not what a reasonable physician would do, then they've got to prove that that failure directly caused the patient's injury. If it didn't directly cause the patient's injury, it's immaterial, so they've got to prove it with the direct cause, and then they've got to articulate the damages to the patient in monetary terms, and how the law regulates those monetary damages does vary some from state to state. All right, that was the wordy, wordy, wordy part. Now we're gonna talk about your compass, which I think is lying on the inside of you. You know, there's a lot of research, primarily coming out of medical education, but other places as well, that looks at the qualities of an excellent physician as physicians and as patients define them, and they're remarkably consistent around the world, and they boil down to these, compassion, conscientiousness or diligence, honesty and integrity, humility and self-reflection, and by humility, I mean a sense that every life is as valuable as every other, and that we are limited in our knowledge, some degree of self-confidence is important, especially to patients, and intelligence. So now pretty much all of us have jumped through a lot of hoops that proves that we have intelligence, and it's the other qualities that really patients, families, and jurors are looking for in us. Interestingly, these are exactly the qualities that will serve you in the midst of a malpractice lawsuit, so you have what it takes to navigate this, even if you feel afraid. Intelligence is something you need to bring to your defense attorney, you need to teach them the medicine as it relates to your case, because you'll be surprised by how much medicine they have gleaned from their work, but they are generally not MDs or DOs. So you've gotta teach them some medicine, and then you've gotta trust that they are intelligent in their own sphere, you do not need to be a lawyer to get through this, you need to lean on them, let them lead, learn some of the law from them, but trust that they're skilled. They need high integrity from you, they need you to tell them everything you know about the case, and to be very truthful with them, trusting that your conversations with them are protected, there is attorney-client privilege, they want you to be humble and compassionate, arrogance will backfire on you, I promise you. First of all, none of us can out-snark a personal injury attorney who gets snarky in a deposition or a courtroom, and juries wanna see that we have a degree of humility, so come in with that mindset, and your attorney needs you to be diligent and conscientious in your preparation, they do not assign busy work, and I know our lives are so busy and it's so stressful, but if they give you a stack of depositions three feet high to read, you just have to read them. I think of malpractice lawsuits as a marathon, and what's hard about these marathons is nobody can tell you at the beginning how long it's gonna be, it could be like a little half marathon, it could be a 5K jog around the block, it could be one of those 100-mile marathons through the Gobi Desert, and nobody, not your defense attorney, not your insurer, nobody knows at the beginning which of these it's gonna be, so I want you to go in with the assumption that you have to take very good care of yourself, like an ultra-marathon runner, I want you thinking about sleep and nutrition and exercise and all the things that you know benefit you physically, mentally, whatever that is for you, whether it's connecting with a psychologist because you find your thoughts are just going around and around and around about this case, whatever you need to do to care for your mental, your thought-based wellbeing, and your emotional wellbeing, and then I want you to think about how to care for yourself spiritually, spiritual is kind of a funny word to use in scientific context, but I think of it as representing anything that connects us to a sense that we're part of something much larger than ourselves, so for some people that comes in the form of religion or classical spirituality based in prayer or meditation, for others it comes when they're running or in the arts or in their relationships with their loved ones, service to their community, I want you to stay connected, these experiences are very isolating and you need to stay connected, I want you to try to compartmentalize a little bit, for me that meant that I only met with my lawyer at his office, I didn't want him coming to my hospital, I have a friend who only met with her lawyer at the hospital she wanted to keep work at work, so whatever works for you to try to compartmentalize it to the degree that you can, I would do that, and I want you to think carefully about what it means to you to win, a lot of people go into these cases determined to prove that they were right, and I can understand that impulse, but sometimes that does not provide the best outcome to the case, the best for you, so I would say that the way I define winning in these situations these days is whatever it takes for you to get through with your integrity and your self-respect intact, if you come through with your integrity intact and your sanity and your health, you have totally won in my book. I want you to be careful about the things you use to manage stress, psychologists say that loss, and this is certainly a loss to be sued, creates a vacuum and that we seek things to fill that vacuum, so for hardworking people, one of the ways we fill the vacuum is we work more, surgeons who are sued have been shown to work longer hours and that does not help, so be aware that you may feel tempted to work more, but you might also be tempted to drink more alcohol or use substances other than under the care of a careful prescriber, or you might start using gambling or other unhealthy activities to fill that vacuum, I'm gonna encourage you to fill your vacuum with yoga and Frisbee with your dog and fishing and hiking and knitting and all the good things, and I want you to stay close to whatever makes you glad to be alive. So this image is from the very first Star Wars movie that came out, which I happened to see when I was about 12, and when I was in the elevator going up to the courtroom day after day, which my trial went on for about three weeks, this image kept coming to mind, I clearly am Princess Leia, and the two Han Solo and Luke Skywalker were my lawyers and I'm not sure who Chewbacca was, but I felt very clear that we were like in a trash pit and the only way we were gonna get out was by our wits. At trial, the plaintiff's attorneys will almost certainly oversimplify the complexity of medicine and oversimplify your story, so it looks like an unbroken line from point A to point B with no subtlety whatsoever, and as if you were obliviously marching towards destruction, they will twist medicine, they will quote you and quote the literature out of context, they may find expert witnesses who come in, who are well-regarded people, who come in and say things that appall you and make your jaw drop, try not to let your jaw drop, but that may be how you feel, and they might even, particularly if some years have elapsed and people's memories change over time, they might elicit testimony from the plaintiffs that surprises you. They will almost certainly abuse the title doctor. They will try to demean you by saying doctor, doctor, doctor, at deposition and at trial, and try to own your title with grace and they may be demeaning, they may try to ambush you with documents you haven't seen before or things you've never heard before, and they may try to portray you, they almost certainly will try to portray you as the anti-doctor. So if doctors are compassionate, diligent, intelligent, humble, et cetera, they will try to make it look like you were not those things. The jury is looking for you to be those things. So they're trying to twist the appearance and they get to go first, plaintiffs. So frequently the defense is unable to respond possibly for days while the plaintiffs present their case, but the plaintiffs get to respond and it's good to have heard them lay it all out before you respond. The thing I want you to know, there are good things in the courtroom. First of all, that you're part of a team, you're there with your lawyer or lawyers, any other defendants and lawyers, maybe the risk managers there, other people who are looking out for you. So you are not there alone. And although I definitely felt out of my element in my courtroom, it quickly became apparent to me that my two defense attorneys were not of their element. Just give them whatever insight you can offer, notice what's being said, hear things that you think might need to be responded to. It's all sort of unfolding in real time and they're very long days for the lawyers. They're taking notes and really very, very hardworking during trial. So give them whatever support you can, let them lead. They are in their element here and we are not. So let them lead, keep the faith and let them play. Sometimes you might find that it's time when the jury is not in the room, the lawyers start to act a little silly or laugh. And at first that struck me as strange. And then I suddenly realized it was kind of like a Thursday night at 1 a.m. in the ER when somebody comes in and starts throwing twizzlers to all the staff. And best, the jury wants to hear what you have to say. I want you to go to the stand and think about what it's like to talk with a family in an exam room. When I got up on the stand, I really tried to imagine those 12 people as like a giant extended family in a room in the ER with a sick kid. I know how to talk clearly in lay people's language about medicine. And I know that I know how to establish rapport with a group of people who need to hear what I have to say. So I encourage you to try to frame them as lay people and get up there with the idea that you're going to speak to them. Someone over here is asking you the question, but you speak to them. But you speak to the jury like you would speak to a family in an exam room. Get up there as your most compassionate, intelligent, humble, self-confident, diligent self. And that will give you the best opportunity for the case to unfold in the best possible way. But remember, regardless, if you come through with your integrity, from my perspective, you've won. This is an area I've been writing and teaching in for about seven years now, maybe even longer. Maybe it's like eight now. I have a website, thrivephysician.com, all one word, T-H-R-I-V-E, physician.com. There's a blog there with lots of free information. There's an online CME course, that's a paid course, but that is to support the fact that I maintain it, you know, the web hosting and the CME credentialing costs significant money every year. So it's there for you, for people who want to prepare for deposition, and there are other resources there. So I encourage you, if that's something that's of interest to you, to take a look. So let's see, it looks like somebody might have put something in the chat. Can you see it, Amanda? Yes. The question is, if you are in a suit with other doctors and feel their actions may be questionable, how should you handle that? That's a great question. I would say, for the most part, if you feel that you can, consistent with high integrity, it's better if people don't throw each other under the bus. That really, the plaintiff's attorneys really like to have one person throw this one under the bus, then this one may come back and throw that one under the bus, and it just complicates matters substantially. So if you have a concern that, you know, someone's actions may not have been ideal, or someone's care may not have been ideal, I would begin by discussing that with your attorney in confidence, absolutely in confidence, and get their guidance. Because they may say, well, I hear what you're saying, but our expert is comfortable that that falls within the standard of care. So I would say, you know, if at deposition, you're asked the following, I would encourage you to phrase your answer this way, and let your attorney guide you. I just would be really hesitant to critique another physician's care when you're under oath. I think, you know, in many instances, also it is possible and absolutely truthful to say, I found myself saying this to family sometimes, not having been present when that happened, I can't vouch for what she saw that I can't see today, right? So I think you can find ways to acknowledge that you were not present when the other physician made decisions that they made. And, you know, you can't judge decisions that you weren't present for. Well, that is fine. I wanna thank everybody for being here tonight. And again, you can find me at my website if other questions come to mind, and you want to email me. If you go to www.thrivephysician.com, there's a contact button, and any email that you might send will drop straight into my inbox. I don't provide legal advice, but I'm happy to share the knowledge that I have. I think that concludes our webinar for tonight, right, Amanda? Yes, thank you so much, Dr. Dierman. Thank you, it's been my pleasure. Have a great evening, everyone.

malpractice litigation

healthcare professionals

pediatric emergency

legal risks

lawsuit roles

risk management

medical documentation

discovery phase

depositions

settlement agreements

self-care