Malpractice Article from Anesthesiology News

Anesthesiology News

www.anesthesiologynews.com

ISSUE: 10/2004 | VOLUME: 30:10

Lawsuit Avoidance Is the Best Strategy, but ...

Protect Yourself--The Malpractice Arena Can Be A Savage One

Elizabeth Douglas


Phoenix--The message from an attorney for physicians and their medical societies throughout the country was not encouraging. "Enemies are everywhere and friends are few and far between," Steven J. Kern, Esq., told attendants at Pediatric Anesthesiology 2004. Further, at the bottom of every slide of the presentation was the admonition: "Anything you say can and will be used against you!"

"Make no mistake--it is war," Mr. Kern said of a medical malpractice suit. "Once the media and lawyers become involved, if you don't protect yourself, nobody else will." Mr. Kern is a principal in Kern Augustine Conroy and Schoppman, PC, a law firm that specializes in representing physicians and other healthcare professionals.

Hire Your Own Lawyer

If a suit is brought against you, there are obvious adversaries, such as the plaintiff's attorney. However, your own attorney, if appointed by either the hospital or malpractice carrier, may consider interests of his or her employer that do not coincide with your welfare, maintained Mr. Kern.

The only way to assure that your interests are paramount to your attorney is to retain your own lawyer to oversee your defense, he said. Mr. Kern recommended employing a cost-benefit analysis in the decision. Does the litigation threaten your career? If you lose, how much will your malpractice insurance premiums increase and for how long? Will you be uninsurable?

Marc L. Leib, MD, JD, suggested there are circumstances in which a physician may justifiably feel confidence in a defense lawyer appointed by a hospital or insurance company. "If the insurance company has selected a qualified attorney and appointed an individual attorney for each defendant, then the physician should feel comfortable using the insurance-appointed attorney," he told Anesthesiology News.

Dr. Leib advised physicians to do their homework. Much in the same way a patient might investigate a physician, a physician can check out the reputation and qualifications of an appointed lawyer. He recommended requesting that the hospital or insurance company provide background information and experience, including success rate, of the appointed attorney; asking physician colleagues and other attorneys about the appointed attorney's reputation; and ascertaining if there are any state bar complaints against the attorney.

Some insurance companies and hospitals employ the best attorneys for the job; others employ attorneys who provide service for the lowest price. It pays to check, said Dr. Leib, an anesthesiologist and healthcare lawyer.

Avoiding a Suit

The paradigm of malpractice tort law is that someone needs to be blamed, said Mr. Kern. While the law may need reform, it is a system that is resistant to change. The cost of the medical malpractice system is currently estimated at over $10 billion per year. This is a large sum, and there are many parties interested in maintaining the system to reap some of these profits.

Avoiding a malpractice suit when a bad outcome occurs is the optimum first defense. "The patient is your first and best opportunity to avoid a malpractice case," said Mr. Kern. "The more convinced the patient is that you care, the less likely it is the patient will bring a lawsuit."

This does not translate into admitting liability, however. Mr. Kern counseled expressing concern and sorrow about a bad outcome, but not admitting wrongdoing.

Trust No One

The obvious foe in a malpractice case is the plaintiff's attorney. The vast majority of payments in medical malpractice cases occur in the absence of malpractice, said Mr. Kern. Plaintiffs' attorneys have one primary consideration: Did the plaintiff suffer a serious enough injury to warrant a large verdict? A secondary concern is the jury appeal of the patient. The plaintiff's attorney does not care if you did anything wrong, he said.

Members of the press are also not your friends, cautioned Mr. Kern. Don't be enticed, he warned. "The media has an agenda. They are part of the blame game. If you trust the media, you will be disappointed." However, what you don't say can and often will be used against you. Maintain a low profile, he advised, but don't ignore the press. Where possible, have someone else speak on your behalf so that your words cannot be used against you.

The interests of your hospital and insurance carrier may coincide with yours, but they may not, said Mr. Kern. "Unless the hospital insures you, assume it's your enemy." Even if the hospital does insure you, concerns about public relations or a more prominent physician may eclipse concerns about you. It is easier for a hospital to punish a "bad" doctor than admit to a system defect that allows errors.

Mr. Kern gave a recent example of a hospital that wanted to settle a suit--brought against four physicians--without apportioning liability. The hospital, which provided insurance, appointed one attorney for the four physicians. "This happens all the time," said Mr. Kern.

The insurance policy contained no consent-to-settle provision. Thus, the physicians had no say in whether the suit was settled. Settling the suit would list Mr. Kern's client in the National Practitioner Data Bank and effectively end her career, he said. The National Practitioner Data Bank is a Congress-mandated listing of healthcare workers who have had legal judgments against them, including medical malpractice payments.

Dr. Leib agreed that one attorney representing multiple clients often results in an apparent or real conflict of interest. Under such circumstances, most defense attorneys will declare a conflict of interest and request that additional counsel be appointed. If one attorney has been appointed to defend multiple physicians or a physician and a hospital, the physician may at any time question if a conflict exists and may then consider hiring his or her own lawyer, he said.

Other caregivers may or may not be on your side, continued Mr. Kern. The above example involved an injury suffered by a baby during delivery. There was a dispute about who actually delivered the infant. When blame is being apportioned, it is human nature to duck, he noted.

Whose Interests Come First?

Even if the attorney is only representing you, if his or her employer is the hospital or malpractice company, its interests may come first, said Mr. Kern. As the main concern of the insurer is cost, the insurer may determine that it is less costly to settle than take the case to trial.

Joseph N. Farlo, MD, pointed out that an attorney pressuring a client to settle against his or her best interests is a breach of contract. Mr. Kern agreed, noting it is breach of fiduciary duty as well. However, in reality, the attorney's view of the case is determined by a number of factors, including the interests of the people who are paying him or her. "It's human nature," said Mr. Kern. Dr. Farlo is Assistant Professor of Clinical Anesthesiology, University of Southern California School of Medicine, Childrens Hospital Los Angeles.

Dr. Leib disagreed that "human nature" would override a qualified attorney's mandated responsibility to a client. "Most defense attorneys take their ethical and fiduciary responsibilities seriously and give their allegiance solely to their physician client," he maintained. "If an individual attorney has been appointed for each physician, that physician can be reasonably comfortable that the attorney is looking after the physician's best interests."

Based on a presentation at Pediatric Anesthesiology 2004, sponsored by the Society for Pediatric Anesthesia and the American Academy of Pediatrics Section on Anesthesiology and Pain Medicine, the National Practitioner Data Bank Web site (www.npdb-hipdb.com) and interviews with Marc L. Leib, MD, JD, and Steven J. Kern, Esq.