How to Survive a Medical Malpractice Lawsuit

Ilene R. Brenner, MD, Adjunct Professor, Emory University, Atlanta, GA, USA

• Acknowledgments viiiForeword ixIntroduction xiSection 1: The long road to trial 11 You’ve been served! Now what? 3Questions to ask your insurer about your policy 3What are the options if your employer purchases your insurance policy and dictates the terms? 6When and how to report a claim 7A few pitfalls to avoid after you’ve been sued 82 What is medical malpractice? 13The criteria of physician legally defined malpractice 14EMTALA issues 18Complaints to the medical board 19Alternative Dispute Resolution (ADR) 203 How to choose an attorney 23Questions to ask your attorney 23Conflicts of Interest 25Problems with the Hospital as co-defendant 26How do you change your attorney? 284 Coping with a medical malpractice lawsuit 31Kübler-Ross five stages of grief 32Maslow five stages of needs 36Strategies for coping 39vvi Contents5 Before the deposition 40Differences between federal and state court 41Addressing the complaint 42The discovery phase begins 43Meeting with your attorney 43The in-house physician review 446 Nail the deposition 46Preparing for the deposition 47Dealing with co-defendant issues 47General deposition rules and tips 50Sample question and answer scenarios 537 All about experts 62Expert qualifications 63Daubert rules regarding medical expert testimony 64The defense expert 66The plaintiff’s expert 67Using the plaintiff’s expert to help your case 69What if their expert is lying? 708 Pretrial countdown 72Reviewing your deposition 72Motions to dismiss the case 73Should you settle your case? 75Preparing for trial 779 The trial 79Rules to follow when in court e.g. How you should dress 80Jury selection 81The cross-examination with tips and question and answer scenarios 84Jury Deliberation 94Damages 9510 What to do if you lose 97What are the steps to getting an appeal? 97Can you get your attorney to file an appeal? 98Settling in lieu of an appeal 99Section 2: An ounce of prevention 10111 Why doctors get sued 103Bad outcome 103Should you apologize? 104What makes patients angry? 105Methods to prevent patients from becoming angry 10512 Communication Issues 112Effective communication 112Foreign language issues 113Informed consent 11413 Good documentation makes a difference 116Documentation of Informed Consent 117Destroy your diary or patient log before you get sued 118Be aware of your electronic footprint 11914 Liability risk with the use of physician extenders 122Vicarious Liability 123How should you run your practice? 12515 Hospital issues 127Peer Review 127Hospital Privileges 128Risk Management: Does it help you? 129The Against Medical Advice (A.M.A.) form 130Suspension of privileges 13216 Summary 133Appendix A Expert qualification requirements vary by state 137Appendix B Arbitration mediation and pretrial screening panels 141Appendix C Collateral source reform 145Appendix D I’m Sorry Laws 148Glossary 150Index 157

" This excellent and thorough book on malpractice should be on every practicing physician's bookshelves." (Doody's, 2 March 2012)