Jan 6, 2016
A malpractice lawsuit can have a staggering toll on the caregiver. Many have described the defendant as being a second victim. Sleepless nights, depression, inability to work effectively and angst, are just a few of the possible manifestations. With physician burnout at staggering levels and rates of depression being reported as as high as 30 to 50% in trainees, physician work dissatisfaction has reached alarming levels. The threat of a lawsuit is an ever present dark cloud. Many practitioners consider early retirement. The clear and simple plan, described below, with multiple interventions, can dramatically ameliorate some of these negative impacts and result in a favorable outcome.
The benefits of intervention are multiple: improving the emotional state, increasing productivity and last but not least, dramatically enhancing the chances to make the defendant an effective participant in the defense of the claim. Education and counseling of the physician should start with a meeting with the claims manager and attorney assigned to the case. Providing a resource kit with links to videos, webinars and educational materials to explain the process and likely outcome is a beneficial first step. Immediately providing referral to an experienced counselor or expert in the field is usually welcome.
In the evolution of the litigation process and before the first deposition, referral to a seasoned knowledgeable witness communication/preparation professional can not only alleviate negative emotions and anxiety but also make the defendant more likely to provide strong testimony.
Teaching the defendant the best techniques to effectively interface with the jury is crucial. Showing the physician how to describe his usual and customary practices often reveal a thorough, knowledgeable caregiver. A caring and compassionate practitioner is always seen as more likable. Below are just three of a myriad of recommendations that can lead to a more relaxed, confident defendant who ultimately will make a better impression.
1. Teach the physician to take the language of medicine and make it clearly understandable to a lay person. Use analogies which make complicated medical decisions easily understood. For example when diagnosing a patient, the differential diagnosis starts with the most common conditions and only after time and evaluation are rare possibilities considered. The easy explanation to a jury is, "When you hear hoof beats you think of a horse not a zebra." When your car goes to the mechanic for possible brake problems, the mechanic looks at the brake pad and rotors before checking for air in the brake-lines.
2. Make every effort to prepare physicians and other care givers to be aware of the difference between labs, symptoms and findings which are "consistent with" a particular diagnosis as opposed to causing a condition in a given case. Simple analogies can highlight the distinction. For example the following events are "consistent with" a plane crash: bad weather, impaired or sick pilot, mechanical failure, poor advice from a copilot or flight engineer, failure to follow a protocol, poor focus or understanding of a situation. Ultimately though the actual cause of the plane crash may be a bird strike. In addition while fever and abdominal pain are all consistent with appendicitis, the symptoms are also consistent with gastroenteritis, cholecystitis, hepatitis, urolithiasis, pancreatitis, diverticulitis or even food poisoning, or a drug reaction.
3. Teach the physician the terms of art that are used by lawyers. For example, never describe a colleague as a "partner" since this has specific legal implications. Never describe an article or book as "authoritative" or establishing "the standard of care" since this also has specific legal meaning.
The usual list of recommendations should always be tailored to the specific techniques used by opposing counsel. The best medical witness preparation uses someone well versed in both medicine and law and who uses multi-modal interactive educational techniques including video and dialectic teaching methods.
By the use of a comprehensive resource kit, early referral for help and consultation with a medical witness preparation expert, claims managers can minimize the devastating impact of a lawsuit on the physician and maximize their chance of a successful defense. Nicolas Argy, M.D., J.D.Health/Business Consultant/Educator, Patient Safety, Quality, Risk Management, Public Health Advocate, Witness Prep