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Anatomy of a Lawsuit. James Fitko, MD, MPH,FACOEM. Civil Procedure. Federal Rules of Civil Procedure State rules. The Complaint. Relatively easy to file Statute of limitations Caption Alleged facts Numbered paragraphs Prayer for relief Pleadings. Process serving. Various methods
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Anatomy of a Lawsuit James Fitko, MD, MPH,FACOEM
Civil Procedure • Federal Rules of Civil Procedure • State rules
The Complaint • Relatively easy to file • Statute of limitations • Caption • Alleged facts • Numbered paragraphs • Prayer for relief • Pleadings
Process serving • Various methods • You can run, but you can’t hide • Contact your insurer immediately • Must answer in 20 days • Don’t discuss any specifics with others
Motions to dismiss • Lack of jurisdiction • Subject matter • The person • Improper venue
The Answer • Limited time to avoid a default judgment • Responses to allegations in the complaint • Affirmative defenses
Necessary elements for a claim • Duty • Physician-patient relationship • Standard of care • Breach • Injury • Proximate cause • (Informed consent)
Defendant Suits • Counterclaims • Cross-Claims • Third-Party Actions
Motions • To dismiss • Directed verdict • Continuance • Summary judgment • In limine
Discovery • Scope • Interrogatories • Requests for Production of Documents • Subpoenas duces tecum • Depositions • Independent Medical Exams (IMEs)
Discovery - Scope • Broad based • Personal questions • Privilege • Attorney-client • Physician-patient • Husband-wife • Attorney work product
Discovery - Interrogatories • Written questions • Under oath
Requests for production of documents • Parties to the suit • 30 day time limit
Subpoenas duces tecum • Require the provision of documents • Not parties to the suit • Protective orders
Electronic Health Record • Technical problems with the software • More details than a paper record • Signatures • Boilerplate and checkboxes
IMEs • Independent medical exams
Depositions • Purpose • Preparation • Location • The transcript • Advice for the deponent • Videotape • Abuse
Depositions-Purpose • The deponent is under oath • Gather information • Determine facts • Evaluate you as a witness • Lock you down • Intimidation
Depositions-Preparation • Very important • Settlement • >90% settle without trial • Meet with counsel • “A reasonable degree of medical certainty” • Study all case material • Medical record • Expert reports • Review the literature
Depositions-Time and Location • Don’t box yourself in on time constraints • Not in your office
Depositions-Transcript • Don’t waive right to read and sign • Changes in form or substance • Must be explained
Depositions-Advice • Listen to the question carefully • Take your time • Don’t lie • You don’t know • You don’t remember • Don't guess or assume • Take breaks
Depositions-Advice • Don’t get angry • Don’t joke • Don’t volunteer any information • “Off the record” • Don’t form “instant opinions” • Don’t say that a text is “authoritative” • “Hypothetical” situations
Depositions-Advice • Inventive assumption • I cannot answer the question as asked • I don’t agree with the assumption • Don’t use the other side’s words • Never say never (or always) • Don’t use absolutes
Depositions-Advice • Repetitive questioning • Don’t elaborate • Don’t volunteer information • Take all the time you need to review documents
Depositions-Videotape • Dress appropriately • Look at the camera • Body language • Don’t get angry or combative • Don’t appear nervous or evasive • Don’t eat, drink, chew, etc.
The Trial • Bench trial/Jury trial • Finder of fact • Level of sophistication • Opening statements • Theories of the case and previews of evidence • Burden of proof • Preponderance of evidence • 51% • A reasonable degree of medical certainty
The Trial • Evidence • Witnesses • Plaintiff goes first • Closing arguments • Jury deliberates • Verdict
Evidence • Federal Rules of Evidence • Relevant evidence
Experts • Qualified by • Knowledge • Skill • Experience • Training • Education • Reports • Express opinions • Compare to lay witnesses
Daubert • Federal Rule of Evidence 702 • Expert by knowledge, skill, experience, training, or education • Daubert v. Merrell Dow Pharmaceuticals • The theory or technique can be tested • Peer review • Rate of error and standards • General acceptance • Did the theory exist before the litigation? • Motion in limine
Remedies • The judgment • Damages • General—pain & suffering • Special—lost wages, medical bills • Punitive • Court orders
The Appeal • Decide questions of law, not fact • An appeal is not a retrial • New trial • Reverse verdict
Implications for Medical Personnel • Record keeping and documentation • How will experts view your actions? • Red face test • Prepare thoroughly for depositions
“Defensive” Medicine • Limit injury if a mistake is made • Consultations • Recommend further treatment and follow-up • Notify the patient or family • Answer questions • Notify your malpractice insurer • Write down everything you remember • Apologize?
The Adverse Event • Whose “fault”? • Was a mistake made? • How serious is the result? • Could/should something have been done differently?
Possible Motivations • Justice • Money • Revenge • Effect a Change • Prevent Future Recurrence
Dealing with a Lawsuit • Don’t take it personally • It’s business • It’s a chess game • 89% of ObGyns have been sued • 70% result in no judgment against the physician • Physicians win 80% of cases that go to trial