Article Date: 8/1/2009

In Case of Litigation
special report

In Case of Litigation

In the first of this two-part special report, the authors recount their firsthand experiences with a malpractice suit and present insights into defending against litigation.

MARC D. MYERS, O.D., F.A.A.O. & ANDREW GURWOOD, O.D., F.A.A.O. Philadelphia, Pa.

A recent graduate confessed his insecurities about entering into independent practice. One of his mentors unnerved him by saying, "It's not a question of if you will be sued … but rather when you will be sued."

Along with optometry's increased scope-of-practice comes great responsibilities and the potential for great liability. Americans seem to be litigious by nature, and the United States judicial system makes it easy to file litigation with no penalty for frivolousness. Anybody can sue anyone for anything, anytime.

The best defense

In medicine, the first and best defense against possible litigation is to "be nice." In most instances, patients don't file lawsuits because they're unsatisfied with an outcome. They file a lawsuit because they're angry — they want their "pound of flesh." A warm greeting, a warm goodbye and considerate interactions with the staff and the physician go a long way toward establishing a trusted and genuine relationship. This goodwill alone can mitigate almost any complication (after all, who wants to sue their personal friend?). However, when the dispute between doctor and patient becomes unrepairable, the alternative defense is having good and proper malpractice coverage, the knowledge of how to use it and some understanding of the legal system.

The letter

For a malpractice case to move forward, it must have "merit," meaning that at least one person with expertise and credibility is willing to testify that wrong-doing was committed. In gathering data related to the case, the plaintiff's attorney first sends a letter to the defendant requesting a copy of the medical records that documents the events in question. This request should not be confused with other inquiries, such as a request for records to help a patient acquire health benefits. A letter requesting copies of records for the purpose of investigating culpability in a potential lawsuit has a completely different and recognizable tone.

The "certified notification from the court" is the formal document that indicates one has been named as a defendant. Also known as "being-served papers," the document includes the:

► details of the case (according to the plaintiff);
► name of the plaintiff;
► date of the event in question;
► claim against the defendant (the provider and what they are accused of);
► instructions pertaining to the timelines for which responses to the accusations must be made.

The complicated document, ladened with legal jargon, requires the defendant to retain a lawyer to explain what has happened and what must be done next.

Examples of medical malpractice can include missing a diagnosis, delivering inappropriate treatment for a given diagnosis or not recognizing that a patient had an adverse response to a treatment — either one that is current or has been completed. Because the possibility of a lawsuit always exists, we must always complete and document any reassessment of a therapy anytime a treatment is provided. Keep in mind: Doing nothing is doing something — that is, if you dispense no therapy for a condition, as in a case where a condition or intervention is being monitored, documented reassessment, reasonable for that issue, is still required.

When patients believe they have incurred damages and have grounds for legal action, they will present their case to an attorney. If unsure of the merits of the case, the attorney will seek the opinions of "experts in the industry." This is called "fact finding." If the attorney concludes that a case exists, formal paperwork with the courts will be filed. The subpoena, a formal notification that a complaint has been registered, mandates the defendant appear in court.

Not an ideal candidate

The following description, which involves LASIK comanagement, is a factual accounting of firsthand experiences. The circumstances contained in this case are in the public record.

The plaintiff desired LASIK surgery. Our examination revealed that he had a preoperative history of compound myopic astigmatism that involved a high amount of cylinder in the left eye. The degree of astigmatism had produced well-documented refractive amblyopia, O.S. As the patient had reduced bestcorrected visual acuity preoperatively, we explained to him that an optimistic outcome for that eye would be vision that was no better than with his current spectacle correction. These details were explained to the patient by the comanaging optometrist, the surgeon and surgical staff. The practice obtained signed documentation from the patient, indicating the same, and that all risks had been made clear to him. The patient signed the preoperative release forms indicating he understood the procedure's benefits and limitations and that he desired to move forward.

Post-op

The postoperative course found minor, common, pre-explained complications: temporally reduced best-corrected visual acuity, superficial corneal epithelial disruption, surface dryness and mild corneal edema. The optometrist and surgeon explained these findings to the patient, and they were documented and managed properly.

As the patient recovered from the procedure, events proceeded as expected. A reduced best-corrected vision was anticipated as a best outcome, secondary to the amblyopia, and the patient could read the chart within the expected and predicted parameters. Additional topographic data demonstrating an irregular corneal surface further supported the visual examination findings.

Approximately three months postoperatively, the patient presented for a follow-up visit with the symptom of an acute change in vision. The patient explained that his vision had become reduced suddenly, and that he noticed difficulty seeing in the superior visual field of the operated (O.S.) eye. He explained that he first noted the symptom several days prior while playing recreational basketball.

Recognizing that these symptoms were new and not consistent with those seen traditionally in LASIK cases, the optometrist advised the patient to immediately report for a comprehensive emergency examination. It revealed reduced acuity (20/200), O.S., with a confrontation field restriction, superiorly, O.S. Dilated examination uncovered a fresh retinal detachment, which involved a large sector of the inferior quadrant of the left posterior fundus bordering on macular involvement. Immediate arrangements were made for the patient to see a retinal specialist. The retinal specialist evaluated the patient within two hours of the diagnosis.

The retinal specialists at a prominent Philadelphia tertiary eyecare hospital agreed with the diagnosis and made the decision to repair the detachment on the following day. Unfortunately, the result was a best-corrected visual acuity of finger counting.

Problems with the system

A friend of the patient knew an optometrist who reviewed the chart and offered the opinion that the case had merit. The optometrist took the case to one law firm that rejected the work as having no merit. A second law firm, however, accepted the case. It only takes one firm to decide it is worth "rolling-the-dice."

That attorney proceeded to go through the "fact-finding" process. The "expert optometrist" indicated that he was willing to go on the record with the information that would give the case "legs."

The business of providing expert legal opinion is lucrative. Individuals who have specialized knowledge are capable of deriving direct benefits from their opinions by finding, in their judgment, that cases have merit. That is why personal injury lawyers want their injured clients "to see their doctor." These "experts" may actually depend on this work as a significant source of their income. In this case, an optometrist, professing to have completed a retina-specific residency, not only found the case to be worthy; he offered to provide the expert testimony should the case go to trial.

In our opinion, tort reform is required. A problem that exists within our legal system is that the lawyers who represent plaintiffs as well as the "medical experts" who provide opinions have nothing to lose against the prospect of personal financial gain. Here, consciously or unconsciously, biased individuals may provide opinions to lawyers who recommend trials move forward. Certain lawyers attempt to make a living by attracting clients through no-cost initial consultations. These lawyers make money solely by taking a percentage of the overall award following a victory. This practice has its risks: The legal team pays fees to file papers and to retain medical experts to appraise the strength of the case. What makes this practice worthwhile is that many defendants opt to settle out of court rather than risk the catastrophic outcomes that could result from a jury trial.

Many feel that we could avoid some of the "merit-questionable" litigation if litigators were mandated to charge customary fees to initiate the "fact-finding." Simply put, if it cost a plaintiff $250 to have the facts of a case evaluated by a lawyer, and the plaintiff was told the case was weak or unfounded, and that if he lost the case he would be responsible for the cost of the court proceedings and be vulnerable to a counter suit by the defense, what would be the likelihood he would be willing to risk another $1,000 to $1,200 to further engage in the fact-finding process and to file papers? The process of filing frivolous lawsuits might be even further diminished if the plaintiff knew that if he lost the case, he could be responsible for paying for the defense's legal expenses and any wages missed due to defense preparation and court appearances.

In our opinion, such lawsuits should be an "all-or-nothing" proposition. If the plaintiff wins, the defense should pay for the plaintiff's damages and the plaintiff's legal fees. Why should the plaintiff have to pay to be made whole? However, when the plaintiff loses, he should pay the costs incurred by the defendant. The defense costs money whether you win or lose, not to mention the cost to your personal and professional life. But why should a falsely-accused defendant have to pay or lose anything?

The result of these laws would be that attorneys would stop using those medical experts who provide bad advice. After they and their clients paid all the costs of several meritless lawsuits, they would either rethink their strategy or go out of business.

Malpractice insurance

When one receives notice of potential or pending litigation, the first step is to phone the insurance provider. A reputable company will provide assistance with step-by-step guidance that will continue throughout the proceedings.

The other important benefit that a good insurance company provides is complete fee coverage for the defense attorney and proceedings. It is customary for the insurer to ask whether an attorney has already been retained or if retaining one is required.

In this case, the insurance company appointed an attorney whose expertise was defending against medical malpractice. This is a critical step. The individual's experience, knowledge of the legal system and ability to connect with experts, who can support your position, can make or break the outcome.

There are two options to consider when deciding on malpractice coverage. One option is a "claims-made" policy; the other option is an "occurrence" policy. A "claims-made" policy executes coverage during a time period that one contracts for coverage (in most cases the time period is yearly). Once coverage lapses or is terminated, there is no liability or accountability by that insurance agent. "Claims-made" policies are triggered by the date one was made aware that a claim is being filed against them. A "claims-made" policy may reach backward in time to provide coverage for alleged negligent acts, errors or omissions that occurred years before the policy was purchased. If the date on which the claim was filed exists within the date of activation of the "claimsmade" policy, coverage is intact. The advantage of a "claimsmade" policy is that they are often less expensive, and they guarantee coverage from the moment the policy becomes effective until the time that it is cancelled. Also, "claims-made" policies allow the insured to adjust their coverage, compensating for changes in the economy.

An "occurrence" contract or policy places the responsibility for any alleged wrong doing on the insuring agent that was secured on the date when the event that caused the alleged loss took place. That policy would require the agent to respond at any time a claim was made, even if the policy had been cancelled. Occurrence policies protect forever, so long as the insurance company with which the policy was purchased remains in business (a potential disadvantage of this strategy).

To fully understand the advantage a "claims-made" policy vs. an "occurrence" policy, one must understand what is meant by standard "2/4 coverage." The terminology of 2/4 coverage (typically recommended for an optometrist today) indicates that the maximum payout per claim is $2 million, and the maximum amount to be covered for any number of claims in a single year is $4 million. For example, in an awful year, one $2 million claim, one $1 million claim and four $250,000 claims would be covered against the maximum limit of $4 million. This is important to understand because this coverage is adequate today. However, as time passes and the economy of awards changes, a plaintiff might be awarded $3 million for a single claim. In this instance, the maximum payout of $2 million for 2/4 coverage would render the defendant with a $1 million deficit. Without the option to revise coverage as the economy of awards increases, a defendant could be underinsured and responsible for all additional uncovered monies.

A disadvantage of an occurrence policy is that it locks in coverage amounts. For example, if a ruling goes against a defendant today for $2 million for an event that occurred in 1990, then the standard and customary coverage of 20 years ago (1/3 coverage) would not be adequate. This explains why today's trend of being over-insured is the norm, not the exception.

The case we are describing occurred in 2002. At that time, most optometrists had malpractice coverage plans of 1/3. In retrospect, this coverage would not be adequate today when most optometric practitioners choose the 2/4 option.

The preliminary proceedings

When the plaintiff's attorney files the lawsuit in a court-of-law, the defendant's insurer is notified. The letter, which is almost always sent by certified mail (never by electronic means), provides instructions to contact a liability provider to arrange for legal representation and to properly prepare all necessary documentation.

The insurance carrier, along with its legal advisors, will begin by reviewing the facts of the case from their client's perspective. Acting as a team, the defendant, the defense lawyer and the insurer review the information that the plaintiff provided via the subpoena. This will include chart notes and letters from other doctors that commented on the patient's care along with the plaintiff's timeline of the complete course of events.

The team will ask critical questions that create a vision of the bigger picture — what is right and what is wrong, what is defensible and what is negotiable. The insurance company has experience regarding "its best interest" and will make a recommendation to either defend against the case or negotiate a settlement. This decision depends on many factors, such as:

► the strength of the case;
► the will of the defendant;
► the ability of the defendant to spend time on the case;
► the award being sought.

The insurance company will often inquire with the defendant about the option to "settle out of court."

The defense attorney and the case manager from the insurance company often rely on their experience and knowledge to provide proper advice. However, unquestionably, the insurance company has the greatest influence in determining whether the case should proceed to trial. Insurance carriers retain a sort of right-of-first refusal. Besieged by controversial claims and wanting both claims and precedents to remain in perspective, the carrier maintains the right to provide advice to influence the decision of whether to battle in court or "settle out of court." If the carrier advises the defendant to "settle," the defendant can still maintain his innocence and refuse that outcome, opting for a trial to clear him of wrongdoing. However, it is quite risky operating against the advice of experts whose job it is to know "when to say when."

Settling out of court

An out-of-court settlement implies neither guilt nor innocence — it signifies that the argument was able to be "settled" without a jury trial. Also, going to trial and being found innocent does not cause the case to just "evaporate." In either circumstance, there are consequences. After such proceedings, on every insurance application, one must answer "yes" for the question: "Have you ever been involved in litigation?" Further, each time you apply to an insurance company after a settlement, conviction or acquittal, you will need to include details of the litigation.

The goal of the initial meeting with the lawyer is to discuss and outline, in general, how cases of these types proceed, review the accusations made by the plaintiff and scrutinize the plaintiff's documentation. Good lawyers not only know their business, they also maintain a sense of calm, keeping the accused focused on the chores at hand. It's easy to become excessively emotional whenever one faces the accusation of providing negligent care. It's also distracting when one obsesses about the prospect of how things will change if the lawsuit is lost.

Legal proceedings move at glacial speed. The legal team must find meeting times that agree with everyone's schedules. Documents have to be read, researched and filed. People have to be notified.

This case involved multiple defendants, so multiple meetings were necessary. Most attorneys like the idea of regularly scheduled meetings (they are reassuring to the accused, as they allow the defendant to feel "in the loop" and as though the team is always on top of the issues).

All of these preliminary processes lead up to the deposition (evidence that is given under oath and recorded for use in court at a later date). The plaintiff's deposition includes information from the plaintiff's side — the plaintiff's claims, the plaintiff's expert witnesses and personal statements from his friends and family. The defendant's deposition includes the same for him. Besides personal meetings with the attorney, the only meeting that requires mandatory attendance is the deposition.

The chart notes are key

The principle link to the events that caused the damages is the medical record. The chart notes are the key to a successful defense. A point that is stressed in the medico-legal community is: "If you didn't write it, it wasn't done." During both the deposition phase and in the court, the facts of record are gleaned from the patient's chart. Both the plaintiff and the defendant may provide comment on information not contained in the medical record, but those statements are open for judgment by the jury. The court will subpoena the original chart and review all original information. Thorough documentation on every patient contact — whether by phone or in person — counts as part of the record. All subsequent medical consultations regarding the patient should be included as well.

The deposition is the first "process" in which the plaintiff, defendant and their lawyers meet face-to-face, and it may produce great stress. This proceeding, a fact-finding tool for both the plaintiff and defendant, allows the plaintiff to confront the defendant with the charges against him. It is important that the defendant's counsel dedicate a great deal of time to preparation. The defense attorney should provide advice so that the defendant understands the proper method and technique of responding to questions. The defense counsel will also pass along information regarding what to expect in the way of methods from the plaintiff's lawyer. A good defense lawyer will make recommendations as to what one should study — the specific topics in which fluent knowledge and clear explanation will likely be necessary. Deposition work should not go without rehearsal.

The defendant feels a great deal of anxiety when confronted by the plaintiff's attorney. It takes concentration to understand the questions that are being asked, and it takes savvy and nerve to answer accurately, according to the record, with a confident but quiet speaking voice. One must always be direct, sticking to the facts and curtailing opinions or editorializing.

The plaintiff's attorney frames questions in an attempt to elicit responses that might reveal information detrimental to the defense's position.

The plaintiff's attorney observes how the defendant responds to certain questions — what made him "sweat" and what made him stutter. If the plaintiff's attorney doesn't get the answer he wants, he often rephrases the question, or asks it again. If the defendant fails to do a good job during the deposition process, it will permit the prosecuting counsel to point out inconsistencies, such as how a question was answered differently on separate occasions.

Anything you say …

The deposition begins with the swearing-in process. All information from the proceeding can be used in the courtroom. The stenographer keeps the official record and is present during the entire event. Sometimes, the proceedings are videotaped. The information that is obtained will provide both sides with a "game plan" for how to present the case in the courtroom.

In the case we describe here, the plaintiff's attorney concentrated on dissecting the patient's chart. The attorney asked questions regarding the organization of the chart, handwriting identification, clinical testing performed, assessment and analysis of the findings with additional scrutiny placed on all treatment plans. He asked the same question over and over, using two or three different ways to phrase it, or he would move on to a new line of questioning and then return to the original line of questioning. It was an attempt to alter the responses and to create inconsistencies. The attorney uses this technique to damage credibility. Inconsistent answers, a fumbled response to a question or a question answered differently each time it was asked can create doubt, which can be exploited in the court room.

The first impressions that the defendant makes to the plaintiff's attorney matter. One must execute the deposition with poise. At any point those being queried can ask for a question to be repeated, which allows them more time "in the mind" to formulate and structure a response and stay on track with consistent answers. At any time, the defense attorney can object to the subject of the questioning, the form of a question or comment that a question was leading (a question that suggests the answer the attorney wants to hear, i.e. "isn't it true retinal detachments are often missed by optometrists?"). The defense attorney may also object when a question or line of questioning is excessively redundant.

A good attorney at no time allows the plaintiff's counsel the chance to develop inconsistencies in answers or create speculation during the interview. Every time an objection is logged, it is highlighted in the deposition document. Before a case goes to trial, the assigned judge will review a copy of the deposition document and will rule on each objection. The judge will decide whether one point of questioning should be allowed, whether certain evidence is inadmissible or another question or line of questioning was inappropriate.

There is also a point in the deposition process in which the defense attorney, for the record, is given the opportunity to question the defendant. The goal of this activity is to clarify answers given in the interview to create strength in the defense's argument and to place emphasis on key pieces of information that were strategically ignored by the plaintiff's council.

A good attorney shapes the proceedings to his client's advantage. While no one can remember every detail, especially when things happened several years earlier, the defendant should be familiar with the decision-making process involved in the events that led to the litigation. The defendant must possess a flawless knowledge of the chart and be able to clearly explain its details, such as abbreviations, drawings and notations.

Typically the plaintiff's attorney and his assistants, along with the plaintiff, are present at the deposition. However, they don't have to remain while the defendant is being deposed, nor is the defendant required to be present during the plaintiff's deposition. During the defendant's deposition, the defense attorney and the attorney's assistants are present.

Following the deposition

All of the parties (plaintiff's team, defendant's team, the expert witnesses and the assigned judge) receive a copy of the transcript of the deposition. Each team of litigants and the judge then pour over the details to be sure that everything has been accurately represented. While the deposition provides an outline regarding what can and can't be used in the trial, sometimes additional information or clarification is needed. A second deposition proceeding may be requested. All of this adds time, complication and money to the process. Imagine coordinating the schedules of three legal offices, the schedule of the plaintiff and the schedule of the co-defendants and defense counsel.

When all of the necessary depositions are completed, the papers make their way to the court. After proper review, the court will set a tentative trial date. Keep in mind: The court's schedule can influence — or conflict with — your plans. Each party (the plaintiff, the defendant[s], the attorneys and the expert witness[es]) must have clear schedules for the trial date. Changes in availability of any of the parties involved in the case may require the court to reschedule the trial.

The precarious start

The time between the completion of the depositions and the start of the trial is precarious. In this case, on four separate occasions, a start date for the trial was made and then rescheduled. On two occasions, the rescheduled date occurred only one week before the start date. Twice, the attorneys had other cases that lasted longer than they expected, and their schedules posed a conflict. Courtroom availability became an issue once, and one cause of delay was the availability of an expert witness.

Throughout this process, the attorneys remained in contact with the defendants. On more than one occasion, an offer to "settle" was declined. The request to have the case dismissed based on frivolousness was countered and also declined. The defense steadfastly believed there was no wrong doing, and the plaintiff remained determined to recover from his loss — round and round it went until a date was scheduled and maintained.

The unaccounted side effect from all of this was the time missed from work. Whether the defendant was paying with the use of vacation days or the loss of earnings potential by taking unpaid leave, it was still costly. Those monies and opportunities can never be recovered, not to mention the emotional cost caused by stress.

A million-dollar shortfall

A dramatic point occurred two weeks before the trial was scheduled to begin. The attorney sent a memo/reminder that the plaintiff was suing for $2.4 million dollars. A review of the insurance coverage found a 1/3 "occurrence" policy (fortunately the carrier was still in business). The co-defendants insurance was structured the same. That meant if the case were lost and the maximum award was granted, each defendant would owe $1.2 million. Since each 1/3 occurrencepolicy would cover a maximumsettlement of $1 million in one year per defendant, there would be a balance of $400,000 dollars charged to the co-defendants. Worse yet, if one defendant lost and the other won, the losing defendant would be responsible for a $1.4 million dollar shortfall.

Logistics for the trial, from a practice-management standpoint, required that we clear our schedule for a suggested time period of five days. This was a great burden, both personally and for the practice. However, a compassionate employer, who wasn't even involved, was understanding. OM

In part two, we will present the trial, closing statements and the verdict.

Dr. Myers is a clinical consultant for The Pennsylvania College of Optometry at Salus University and The Eye Institute of Pennsylvania. He is on staff at the Coatsville Veterans Administration Hospital, Coatesville, PA.
Dr. Gurwood is a professor at The Pennsylvania College of Optometry at Salus Univeristy and attending staff at the Department of Ophthalmology, Albert Einstein Medical Center, Philadelphia, Pa.


Optometric Management, Issue: August 2009