Handling the Heat of a Medical Malpractice Trial: Sound Advice from ProAssurance’s Experts
Handling the Heat of a Medical Malpractice Trial: Sound Advice from ProAssurance’s Experts

Dan Reynolds, editor-in-chief of Risk & Insurance, recently caught up with ProAssurance’s Mary-Lynn Ryan, JD, senior risk management consultant, and Barbara Hunyady, JD, Midwest regional risk manager.

They discussed the challenges and considerations involved in preparing physicians for medical malpractice trials, the resources available for stress management, and the role of the risk management team in these situations.

What follows is a transcript of that conversation, edited for length and clarity.

Risk & Insurance: What are the key considerations when preparing a physician for the demands of a medical malpractice trial?

BH: It involves several key considerations. First and foremost, it’s essential to recognize and address the significant level of stress that physicians experience in the days and weeks leading up to the trial, as well as on the first day walking into the courthouse. It’s a very intimidating situation that can lead to a lot of stress.

ProAssurance and other organizations have numerous resources available for stress management. We are currently in the process of bundling these resources to make them easily accessible for physicians. It’s important for physicians to be aware that the stress they feel is normal and that they should utilize all available resources to help them cope.

Another crucial consideration is ensuring that the physician’s office is adequately covered while they are in trial. Physicians need to communicate effectively with their staff and have a plan in place for emergencies, as they may be unavailable during the trial. Some courthouses don’t even allow cell phones in the building, making it difficult for staff to reach the physician.

Physicians should make sure that their office is well-prepared and that their staff understands the limitations on the physician’s availability during the trial. Having a solid plan in place for coverage and emergencies is essential to minimize disruptions and allow the physician to focus on the trial.

R&I: What resources does ProAssurance offer to physicians who are involved in litigation, and how are these resources typically used?

BH: ProAssurance Risk Management offers a selection of written materials, videos and seminars. These resources include information on overall wellness in the practice of medicine and the litigation process. Risk management provides the educational piece. Once a matter is in litigation, we defer to claims for any support needed during the life of the claim itself.

R&I: What are some of the challenges physicians face when they are required to attend a trial, and how can they best prepare for these challenges?

Mary-Lynn Ryan, JD, senior risk management consultant, ProAssurance

BH: Physicians, especially those attending their first trial, often underestimate the time and focus required of them during the proceedings. While their legal team is there to try the case, it is also vital for the physician to be present every day and to actively participate.

There are instances where physicians attempt to juggle their professional duties along with the trial, for example by working night shifts at the hospital and attending the trial during the day. The physician may be well-intentioned, and taking time off work can be particularly challenging when a department is short-staffed. However, trying to do double-duty does not do justice to either responsibility.

The key, then, is for the physician to be prepared, to understand the need to be fully present at the trial and effectively communicate this fact to partners and staff to ensure they are aware of the provider’s unavailability.

R&I: What advice would you give to a defendant preparing for trial, particularly regarding working with their defense team?

MLR: When preparing for trial, it’s essential to listen to the defense attorney and the claims specialist. They have a wealth of experience and are there to facilitate your best presentation as a defendant.

The entire defense team is dedicated to ensuring that you are well-prepared and supported throughout the trial. It’s important to communicate your needs and concerns with them, as they have access to a wide range of resources that can be leveraged to assist you.

BH: That’s an excellent point. In addition to the risk consultants and claims specialists, the attorneys have access to a variety of other resources as well. It’s simply a matter of making your needs known.

When we become aware that a physician requires additional help or resources, we can rally the necessary support to address those needs.

R&I: What strategies or recommendations do you have for handling media coverage, especially in the case of potentially negative media attention following an adverse verdict?

MLR: Adverse verdicts can be newsworthy and attract media attention, which can be problematic, because the risk doesn’t end at the verdict. Defendants need to be cautious about what they say to the media to minimize additional liability and to avoid diminishing their ability to appeal or reduce the verdict.

Contact with the media is usually a new experience for defendants. It can happen anywhere, such as on the phone, coming out of the courthouse, in the defendant’s office, or even on their website. Attorneys may be able to handle the media themselves, or they might help the physician respond, possibly with a prepared statement. As a risk management recommendation, we suggest that before answering any media inquiries, physicians should step back. They can say something like, “I have a duty to maintain my patient’s confidentiality, so I’m going to relay your contact information to my attorney.”

It’s also important that the physician’s staff, their family and everyone in their circle who the media might contact has the same directions and messaging about how to handle media inquiries.

There should be a designated person in the office to handle media calls. That person should refer the media to the attorney or follow a more detailed response process, rather than having different messages coming from different people about the verdict or other sensitive matters.

R&I: What advice would you give to a physician who has just experienced an adverse verdict and may be facing media attention for the first time?

MLR: In any circumstance, physicians should avoid discussing patients due to HIPAA concerns, even if the patient has waived a certain level of confidentiality by bringing the lawsuit. It’s best to maintain the mindset of not discussing any patients with the media.

It is also best to avoid engaging in conflicts on the internet and on social media. Physicians should refrain from posting anything about their trial experience or their feelings towards the plaintiff, the plaintiff’s attorney, their own attorneys or their insurer. Such posts can be misinterpreted and potentially harm ongoing efforts to reduce or overturn the adverse verdict.

If photographed by media crews, physicians should maintain a professional, calm, and dignified demeanor without appearing angry or overly cheerful. There is no need to cover your face or overreact; just maintain professionalism at all times. In the rare event the media comes to the physician’s office, it’s important to instruct staff and administrators to request that camera crews not film patients to protect their privacy.

R&I: How difficult is it for physicians to maintain composure when facing a trial that could negatively impact their reputation and career, despite their best efforts and hard work?

BH: It is an incredibly emotional and stressful situation for physicians to go through a trial, regardless of the outcome. Having been through trials with numerous physicians, I couldn’t agree more with the sentiment that it would be infuriating to have one’s reputation impugned after devoting so much time to their profession and their patients.

The emotional toll is immense, and it’s been building up leading to the trial. Once the trial is over, it can be difficult to maintain composure whether you win or lose. In light of this, I believe Mary Lynn’s advice for potential media attention and having a plan going in is the best approach to minimize fumbling on the way out. It’s a challenging ordeal to navigate, but preparation can help mitigate some of the difficulties.

R&I: What are the key considerations when conducting a post-trial briefing with physicians, and what is the purpose of these meetings?

Barbara Hunyady, JD, Midwest regional risk manager, ProAssurance

BH: The purpose of a post-trial debriefing is twofold. First, it allows the physician to reexamine the different twists and turns that emerged during trial, identifying any new or surprising arguments raised, and considering if there are things that could be done differently in practice.

Second, it ensures that the practice circles back and reexamines any additional opportunities for refining or updating policies and procedures. It involves communicating improvements with staff and identifying areas where risk management education can be implemented.

For maximum benefit, the discussion should include the physician, the defense attorney, and risk consultant. While many physicians want to move on as soon as the trial is over, it’s important to not overlook the opportunity to improve. This process steps back and examines everything that was argued at trial from a risk management perspective rather than a litigation standpoint. This makes it possible to identify areas in a practice that may need attention, and find learning opportunities to help prevent future lawsuits.

R&I: What is the importance of documentation and communication in healthcare, particularly in relation to potential litigation?

MLR: Excellent documentation and communication are crucial to avoid potential lawsuits. Obviously, the best way to prevent an adverse verdict is to not get sued in the first place. Implementing strategies for thorough documentation and communication can help physicians avoid getting sued. If a lawsuit does occur, having thorough and accurate records is essential.

It’s critical not to alter records after receiving notice of a lawsuit. Adding notes or altering records can give an impression that the outcome was avoidable and that errors are being covered up. Plaintiffs’ attorneys can argue that changes in medical records are part of a conspiracy, which resonates with some jurors and can lead to an verdict.

R&I: What are some key factors that contribute to adverse verdicts in medical malpractice cases?

BH: One common theme among plaintiffs, which is even evident in their TV commercials, is the feeling that they don’t know what happened and why. Plaintiff attorneys often advertise that they can help clients get answers. During depositions, if the defense asks plaintiffs why they brought the lawsuit, many respond, “Because I want to know what happened.”

Having a robust disclosure discussion after an unanticipated outcome is crucial in conveying the necessary medical information to the family in a fair and understandable way. It is important to focus on the medical situation at hand and the plan moving forward. Do not rush the conversation, jump to conclusions, or place blame. Risk management can offer resources to help physicians with these difficult discussions. A good starting point is the Risk Management Guidelines on our website which has a section dedicated to Disclosure of Adverse Events.

Another issue that sometimes arises during lawsuits is the discovery of new information about a particular EMR, such as how are printed out or tagged. Sometimes it’s not until the lawsuit occurs that the full picture becomes clear, and plaintiffs’ arguments can highlight areas where the record is confusing and could have been more detailed or comprehensive.

R&I: How can an adverse verdict impact a physician’s professional licensing, and what role does the insurance company play in this process?

MLR: The impact of an adverse verdict on a physician’s professional licensing depends on the level of negligence and the verdict amount. After an adverse verdict, the medical board is typically notified, either through a report or by the patient, which triggers an investigation.

During this period between the verdict and the medical board investigation, it’s crucial not to diminish what can be argued. The verdict is what it is, and if it was substantial, there may be an assumption that something seriously wrong occurred. However, if the verdict is disproportionate to the evidence presented in the testimony and records, the medical board should focus on the facts of the medical care provided, rather than the jury’s determination based on presented expert opinions.

In such cases, the attorney representing the doctor before the medical board plays a vital role. Upon being contacted by a medical board for records, an interview, or an investigation, the first step for the physician is to contact their insurance company to ensure they know how to choose appropriate counsel. The attorney’s responsibility is to help the medical board understand the underlying facts and argue that the jury’s verdict does not align with what actually transpired in the case.

While an adverse verdict can affect a physician’s professional licensing, the investigation and hearings provide an opportunity for the physician and their lawyer to present the true story. The attorney’s role is to present an accurate narrative of the case, regardless of the jury’s decision.

R&I: How do medical boards balance their investigations and disciplinary actions against physicians in light of the current legal environment, which includes issues like legal system abuse and social inflation?

MLR: Medical boards have a mission to protect the public, so their primary focus is on identifying egregious behavior or actions that could be defined as moral turpitude on the part of the physician. This may include fraud, dishonesty, or other conduct that calls into question the physician’s fitness to practice medicine.

The specific facts of each case play a significant role in determining the appropriate disciplinary action. Medical boards consider the severity of the misconduct and its potential impact on patient safety. Throughout the disciplinary process, physicians should heed the advice of their defense team, just as they would during a trial. &

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