November 28, 2011
- Hello, ladies and gentlemen and thank you for joining us for another session of the Grand Rounds. Our guest today is Dr. Alan Scarrow, he's the president of the Mercy Clinic in Springfield, Missouri. He's an M.d., JD, and he'll be talking to us about salient details related to medical liability, and most importantly, how the neurosurgeon can stay safe. Thank you for joining us.
- Thank you for having me Aaron. Today we're gonna talk about, look at a review of medical liability for the neurosurgeon and how to stay safe. And particularly this comes up in a surgery that we do very commonly, degenerative spine surgery. We also get sued as we're gonna talk about in a little bit, most commonly because of input either from our colleagues at our hospital or our clinic, or even other neurosurgery colleagues. So then what we say to patients who come into our office that have maybe been seen by surgeons prior to us is very important. So let's go ahead and get started here. So arguably malpractice, at least in the courtroom is a bit of theater. And so I'm gonna present this here as a, with the backdrop of a stage here as we talk about some of the characters that will be involved in a malpractice case. So the first one, the first person in the cast is obviously the plaintiff and presumably this is a patient of yours, or maybe a former patient of yours and the who, as far as who is the plaintiff is very critical with regard to the malpractice case. Plaintiffs or patients that are more credible, that are believable, that make good witnesses look very attractive, both to a plaintiff's attorney and then to a jury in a court of law. So again, patients that come into an attorney's office that have a good story, that are able to communicate effectively, that would be able to convey the story both of their life before the surgery and the consequences after, those are gonna be patients that are plaintiffs and clients of attorneys that are very attractive, because those are the ones that are gonna be the best witnesses in a court. And so the who, as far as who the plaintiff is, is very critical in that. And then you have the plaintiff's attorney. Now I've chosen this photo that I pulled off the internet as a plaintiff's attorney for obvious reasons. I mean, this fellow looks fairly imposing and I chose this because I wanted to convey the point that plaintiff's attorneys tend to be fairly aggressive. They are going to come after you as a defendant. They are going to try to stoke your emotions, to try and get you to say things or feel things that will ultimately play in their favor. And so you've got to know this upfront, that even though you're going to have a host of emotion, some anger, maybe some resent that the plaintiff's attorney are going to use these types of things against you to pull out things to have you say things that could be taken out of context, maybe that you don't mean, but in the heat of the moment, they will try to get your emotions to play into their hands. So they're gonna be kind of like this guy, they're going to be aggressive and come after you. So we don't like these guys so much. At least when they are up against us, we see them not in a favorable light. Okay, the next person in the cast is typically the hospital. And the reason I bring these up as we're gonna talk about a little bit later in this talk, is that the hospital is commonly a co-defendant with neurosurgeons in a malpractice case. And of course, hospitals are not inanimate objects, they are run by people. And so the administrators are sometimes the case managers, are risk managers in a hospital are charged with limiting the liability exposure that the hospital is at, limiting the amount of money that the hospital has to pay out. Now, sometimes neurosurgeons are employees of hospitals. And in those cases, the hospital may have the same attorney as the neurosurgeon does, but in some cases they don't. Some cases the hospital will have one attorney, the neurosurgeon will have another attorney. And the goals that the hospital and the neurosurgeon have regarding the outcome of the case may not be the same. So the hospital is a key player as well. The hospital has an attorney, as we've just talked about, and that attorney is charged with, again, carrying out the mission of limiting the liability, limiting amount of money that the hospital has to pay out in terms of defending itself. And then there's you. Now of course, most of us spend the majority of our time thinking about ourselves. And particularly in a malpractice case, you are going to think a lot about how you feel and how this affects your family, your practice, your time. Again, this is one thing that the plaintiff's attorney is using against you. You may want to see this, just go away, just stop bothering you so that you can do other things take care of your patients, do the things that you enjoy doing. The fact is, is that none of us wants to be in a malpractice case. None of us wants to spend our time doing these types of things, but this is reality. These are things that happen. And when they come our way, we have to deal with them. So again, kind of putting those emotions and setting them aside, compartmentalizing them and realizing we've got to focus on the task at hand, is going to be key to keeping yourself safe and ultimately successful in medical malpractice. Your attorney once again, may be the same attorney as the hospital has or may be different depending on your employment relationship. Your attorney is absolutely key in your ultimate success. You have to tell your attorney everything, everything good about the case, everything bad about the case. One of the things the attorney is probably going to do for you is to build the case against you beforehand, to anticipate all the arguments that the opposition, that the plaintiff is going to bring up when the suit ultimately get served to you and we start to do depositions. So the attorney's going to ask you some difficult questions. He's going to use maybe, going to take an accusatory tone at times because he or she is preparing you for what you're going to be up against. And so the skill that an attorney has is very crucial in your success, and you should get to know them well and share everything about the case with them, both good and bad. Now, you also have an insurance policy, a malpractice insurance policy. Most of us probably don't spend our free time reading the fine print of an malpractice insurance policy until we have to. But the truth is, is that that detail, that fine print in there is very important. It is going to tell you what you have the freedom or latitude to do in the malpractice case. For example, if you would like to settle the case or not settle the case, the terms of whether you can settle and for how much, are going to be wrapped up in the fine print of that policy. How much you can spend sometimes on expert witnesses or spend total in the defense of a malpractice case may be set up in that insurance policy. So it's good to know, in addition to just here are the limits for the cases, here are the annual limits for malpractice, the fine print of that policy is very important to know and read. And that insurance company that has that policy on you is also going to have an attorney, and the attorney is going to have the opportunity then to look at your request. If you're making a request, let's say to continue a case to go to court and he or she is going to match that up against the fine print of the policy, and they're going to look at clients that are similarly situated to you and tell you, here's what your options are, here's what the terms of the contract or the insurance policy say that you can or cannot do. So they will be involved fairly early on in the case as well, whether you see them or not. Now, insurance companies will often issue a re-insurance policy. So for example, let's say that an insurance company has you up to, let's say $3 million of coverage per case. And let's say then that they might say, well, we don't wanna cover that position for the whole 3 million. So we'll cover the first , the other $2 million we'll risk to another insurance company. So that if a case is brought against you, that exceeds that $1 million threshold in my example, the case would get bumped to their re-insurance company as well. And they would have a say, of course, then in how the case is handled. Now, malpractice cases can also get fairly personal. You are also going to very commonly have co-defendants in a case that are your colleagues. Sometimes they are your friends and the plaintiff's attorneys can use these relationships to their advantage. So that let's say a colleague of yours that maybe was an internist that is brought as a co-defendant in a malpractice case, plaintiff's attorney may offer questions to them that would make them look good and you look bad, or perhaps vice versa. So these cases can be divisive. And it's good to be able to communicate and to understand that everybody's position, I think before these things start to happen. There's also some folks called actuaries and actuaries are people that set a total amount of economic damages that have ensued as a result of the case. So for example, if a 40 year old man who's been employed, let's say, as a welder was injured and could not work anymore, they would come up with the pay that an average welder that had perhaps say 25 years more to work would have made over his or her lifetime, the interest that would accrue as a result of that, they would look at the added medical bills that that welder is going to have as a result of the care that was alleged to have occurred in this case and so forth. There's going to be a total dollar figure that that actuary is going to come up with that's going to be submitted to the court as evidence. And then you have expert witnesses. Now there are experts for both defendants that you hire and experts that the plaintiff will have, that they will hire. And of course, the experts tend to see the case in a light favorable to whoever hired them. So a defendant's expert is going to look at that case and is going to present both a deposition and perhaps ultimately testimony in court that reflects their view, their opinion of the case. And same for the plaintiff. Now, the credibility of these experts is absolutely crucial. It is not necessarily true that an expert that has, let's say a 30 page curriculum vitae, is 10 times more credible than an expert that has a three page curriculum vitae. What really matters is the ability of that expert witness to convey a believable objective, credible story of what happened in his or her opinion. Their ability to convince others of that opinion really determines the value of an expert witness. And that's why the best expert witnesses are paid quite handsomely to do their job because they can be very instrumental in the outcome of a malpractice case. Now, this is all in the name of justice, correct. And I say that just, I suppose, with a little bit of sarcasm, because as we've just talked about, there is some theater involved in this and that implies that justice is not always being served. Now, certainly the plaintiff's attorneys, when they get up and go to work every morning, they believe that they are doing it for very good reason, that they are out to protect patients and to help patients, that have been wronged by physicians. Of course, we don't see it that way. We see it quite different that they may be motivated by reasons other than just doing the right thing. And I think it is fair to say that economics does play a role in malpractice cases. And we've talked about that a little bit already with regard to who is a credible witness or who is a credible plaintiff, who does a lawyer or plaintiff's attorney think that they can put in front of a court that will have credibility and integrity. Those are the types of plaintiffs that they would want to take on. So now obviously the person that you're thinking about in this whole scenario is you. You were thinking again about how this affects your practice and all the time that you're spending away from doing things like not operating and not seeing patients, instead you're in an attorney's office, or you're reviewing records and so forth as you prepare. It's natural to have these feelings of angst and concern about how this is affecting you, but know that that, again is one of the leverage points that a plaintiff's attorney is using against you to get you to want to get things settled, get them out of the way so that you don't have to deal with that anymore. And in some cases that may be what you want as well, to just move on with things, but to get the case dismissed or to win in a courtroom, you have to take a long-term view of these things. You have to look at what you want your goal to be some point in the distant future and work backwards from there. Know that what you have to do in order to get to that goal that you have. Okay, so if what we want is ultimately to get the case dismissed or to be successful in court, we need to, as I said, start with the end in mind. Start thinking about how do we get to that destiny of dismissal or of a victory in court. So let's think about some things that you probably want to have happen first. First of all, you don't want to get sued in the first place. So we're gonna talk a little bit here in this next part about who tends to sue neurosurgeons and why, and for the facts of this case or facts of this portion of the talk, I'm gonna use a paper that we published in the WNS Neurosurgeon back in the spring of 2011, the spring of this year. And it's gonna talk about 90 closed case malpractice cases against neurosurgeons that we reviewed and ultimately the who and the what and the how and the why of those cases. So we're gonna use that data here for a lot of this portion of the talk. So we'll do this in a quiz format. So you can kind of think about this before I flash the answer in the next slide. So who sues neurosurgeons, would be predominantly men or women? And the answer is, it's predominantly men. About two thirds of plaintiffs are male. Well, think about why that would be for a moment, and we've touched on it a little bit already. And this of course goes back to what I was mentioning earlier about the economics of malpractice cases. Remember that our plaintiff's attorney on the left-hand side of the PowerPoint here is paid on a commission, and those commissions run somewhere typically around a third, maybe to 40, 45% of the total damages in a case. And those damages are largely determined by what are called economic damages or the lost wages, the medical bills. Now it is true that we sometimes see a malpractice verdicts that are published in newspapers and on television and so forth, that run into the tens or even hundreds of millions of dollars because of what are called non-economic or emotional damages. These are things like a loss of consortium pain and suffering and so forth. While those do happen occasionally, it is also true that the vast majority of malpractice cases have damages that are dependent entirely on economic damages. In fact, in our series of 90 closed claim malpractice cases, there were none that had non-economic damages. So in getting back to our question of why would men tend to be plaintiffs more so than women, you have to look at the wage earning capacity. So while it is certainly true in this country that for the same job, men and women are becoming closer and closer in the amount of money they earn, still in the United States, men tend to earn about 20% to 25% more than women for the same job. Now, imagine yourself as a plaintiff's attorney, or perhaps imagine yourself as a juror, and you see this plaintiff sitting there in the courtroom, or perhaps there's a plaintiff's attorney sitting in your office and you're thinking about, what does this person come across as? Well, if they are male, let's say they're the sole breadwinner in their family and they are unable to work henceforth because of what was allegedly had happened in the case, that is a very credible type of witness in the courtroom. It would be a good client to have if you were a plaintiff's attorney. So wage earning capacity, as at least something to do with the reason that men tend to be plaintiffs more common than women. Now this next question, maybe this is a little bit sarcastic, but who sues neurosurgeons more, patients who are dead or alive? And obviously dead patients don't sue, but their estates can sue for malpractice. And the answer of course, is that most patients who sue are alive. Estates rarely sue neurosurgeons. In fact, in our series of 90, there were none. Well, why is this? Well, this is a movie quote I'd pulled here, but dead men tell no tales. And the point that I'm trying to make with this slide is in a courtroom that is nonverbal in nature. In other words, when a plaintiff is sitting in the courtroom, the jury is looking at them. They're looking at them, perhaps at least 50%, maybe of the majority of the time, trying to understand who this person is. Are they telling the truth? Do they have integrity? Is their story reasonable, plausible? Did things happen as they say? And by the way, they're doing the same thing for the defendant. They are looking at the nonverbal communication that the defendant is giving off. Well, if a plaintiff is not alive at the time of the case that their estate is bringing, that person, that patient, that descendant is not in the courtroom to be able to convey that type of communication. So as a plaintiff's attorney, a patient who is not alive, where the estate wants to bring the case it's, maybe a more difficult case to be successful with. Okay, now plaintiff's most often come from which initial clinical setting? And this is where the physician and patient relationship starts. Is at the office, the ER, or the hospital? And the answer is the office. About 85% of all plaintiffs initiate their clinical relationship with the neurosurgeon in the office setting. In other words, these are elective cases, about 9% are in the hospital, about 6% in the emergency room. Now this may dispel the myth, at least to some extent that emergency rooms are places of higher risk for neurosurgeons. That is actually not true. Again, the majority of the risk, or I should say the majority of the plaintiffs that ultimately sue neurosurgeons come from the office. Now, it is true that about a third of plaintiffs have a remote history of trauma related to their condition. In other words, maybe they had a fall or an accident at some point in the remote past, but the relationship that begins with the neurosurgeon occurs most commonly in the office. And again, so why would this be? Well, it has something to do with expectations. And again, I'll ask you to put yourself in the shoes of, let's say of a juror in a case, in a malpractice case. When we're in the office setting like this nice office that I have down here, think about that. In the office setting, you have time, you have time to be contemplating about the risks and the benefits. You might have time to consider alternative therapies. You might have time even to go shop around from surgeon to surgeon before ultimately making a decision, but that time allows expectations to get set and dialed inappropriately, versus in the emergency setting as we all know, we don't always have time to make decisions with perfect information. Things have to happen for one reason or another quickly. And under those circumstances, sometimes our decisions are not always correct, but juries can appreciate that. And they can appreciate that you made decisions, you took actions at a time in the care of the patient where their critical element was time. And knowing that we will always make decisions when we have to make them under time pressures, that factors into the expectations that a jury would ultimately have. So that I think is really why very few malpractice cases start in an emergent situation. All right, so our most neurosurgical malpractice case is cranial spinal or peripheral nerve. Well, again, probably would guess the answer to that. And that's by a factor of three to one, spine is the most common type of pathology that starts a neurosurgical case. Peripheral nerve is really a very few percentage of cases, and this is roughly reflective of what the profession sees as a whole. So again, this may dispel the myth that at least to some extent that neurosurgeons feel they're more risks for doing cranial work than they are spine work. The fact is, is that most malpractice cases get generated in the office and they tend to be by patients that are not in emergency situations or a primary brain pathology. Is a neurosurgical malpractice case involving the spine more likely to involve instrumentation? You probably would guess the answer to that. And the answer is yes. More than half of neurosurgical malpractice cases involving spine care have instrumentation placed during the case. This is probably reflective of a couple of things. One is that, of course, spine instrumentation is much, much more common today, certainly than it was 30 years ago, becomes more common all the time. It's probably a majority of a spine cases at least in many practices. And it's also true that the more instrumentation that's put into a spine, the more risk there is. So the placement of say pedicle screws, or interbody devices carries with it additional risk when compared to non instrumented cases. So instrumented cases do drive up the risk of malpractice. So true or false, most patients who sue neurosurgeons for malpractice have neurologic deficits prior to surgery? And the answer is true. About 70% of patients who sue neurosurgeons for malpractice have some type of neurologic deficit, be that radiculopathy or a myelopathy, maybe a cerebral dysfunction or cranial nerve deficit prior to the surgery that initiated the lawsuit. Now, there is an interesting corollary to this though, and that is this. Is it true or false, most neurosurgical malpractice plaintiffs have new or worsened neurologic deficits after their surgery? And the answer to that is false. In our series about 54% of malpractice plaintiffs did not have new or worsened neurologic deficits after the surgery, but may have varying degrees of pain. Now, interestingly, a minority, 7% had actually no deficits and no pain at all. And about one third had minor neurologic deficits and some pain after surgery. Well, so what's the takeaway from that? I mean, why would that be because that's not exactly intuitive. You might think that the best plaintiffs would be ones that had a clear objective neurologic deficit following surgery. And I think here are some takeaways from that. One is that, angry patients don't have to have an objective finding to initiate a lawsuit. Patients that feel that their outcome was less than what they expected, are gonna be angry patients. And they are the ones that are going to write complaints, ultimately seek out attorneys and really press the accelerator on bringing a case and trying to win, of course. I think a part of this then, as far as an educational aspect of this for neurosurgeons, is that we need to be able to set reasonable expectations upfront with the patients. We need to let them know what the risk, what the benefits are, what the outcomes and our hands are likely to be. In other words, perhaps, you might say patients that have back pain for years that come in and perhaps get surgery, we need them to know that it is not reasonable in many cases, anyway, that we are going to be successful in eliminating all of their pain. And that patients who have higher medical risks, for example, in the preoperative evaluation stage, have a higher risk of having undesirable consequences or complications step. So we need to have that kind of dialogue. That's a very important part when we establish the relationship with these patients. And ultimately what I'm driving at here is we need to develop an open and honest relationship of integrity with the patient. Integrity means telling the truth and doing what you say you're gonna do every single time. The patient needs to be able to rely on that. And when you have that kind of a relationship that starts in the office, or starts wherever the patient and physician relationship initiates, those are relationships that are unlikely to cause problems for internal malpractice down the road. Okay, are patients who sued neurosurgeons more likely to have additional surgery for the same pathology that was addressed in their original surgery, yes or no? Well, the answer to this is yes. And in the beginning kind of monologue that I gave as we started this, this is one of the points that I really wanted to be able to drive home in this webinar. About 60% of plaintiffs have subsequent surgery to fix complications or lack of improvement from their original surgery. Now, once they have that subsequent surgery, about 44% of them are unchanged, 32% are actually worse and about 24% are better. Now, I think that that's important as we're gonna talk about just a little bit later in that, when patients go to see subsequent surgeons or other physicians, the words that those subsequent physicians use is very important to those plaintiffs, to those patients. They are looking for why, what caused this? Other than just random chance or in a feed that desire that those patients have, that will often get the ball rolling that will ultimately lead to a lawsuit. Okay, true or false, one of the most common reasons neurosurgeons are sued is because of wrong sight or retain surgical items. The answer to this happily is false. And of course, hospitals have a number of things that they do in order to prevent these things. So for example, we have marketing before the case. We have counts before and after the case begins. And one could argue that these have been fairly successful in eliminating these as a cause of malpractice. So those types of things are actually, again, happily fairly uncommon in generating a suit. Okay, the most common allegation against a neurosurgeon in a malpractice case is, improperly performed surgery, lack of informed consent, unnecessary surgery, failure to diagnose or improper peri-operative care. Now, the answer to that is improperly performed surgery. And I think in this next slide you'll see, about 70% of plaintiff's alleged an improperly performed surgery as the crux of their malpractice case. Now it is also true that it is common that there is more than one allegation against the neurosurgeon in the case. For example, they may allege both an improperly performed surgery, as well as one of these other things that I've listed here on the slide, such as failure to diagnose, or lack of informed consent, or unnecessary surgery, or inappropriate postoperative care. Those are some of the more common, additional allegations that will be brought against a neurosurgeon. And so the tactic if you will, for the plaintiff's attorney is, well, we'll bring up this as a possible cause. If that doesn't work, then we'll fall back on a secondary or tertiary cause of the plaintiff's injury. So, but improperly performed surgery is still by far the most common allegation in the complaint. Okay, which is the most common co-defendant with a neurosurgeon in a malpractice case? Is it hospitals, the neurosurgical group, other treating physicians, mid-levels residents or nurses? We kind of gave this answer away in the earlier portion of the talk. The answer is hospitals. And I put that in there for this reason. And that is that plaintiff's attorneys and plaintiffs are not naive to this. They want to go where the money's at. And so I have this sort of infamous picture of Willie Sutton up here, who allegedly, when asked why he robbed banks he says, well, 'cause that's where the money is at. So the average settlement in a neurosurgery malpractice case, you can see here in our series of 90 cases, was close to $400,000. Now that's not terribly surprising in that the areas of the anatomy that we are typically operating on, namely the brain and the spine, obviously there's injury to those types of structures, that there can be significant damages, significant ability to earn an income, to live one's life in any kind of normal way. So it is not surprising then that neurosurgeons get sued in the same light. That is why hospitals get sued. Hospitals take on a great deal of liability in caring for neurosurgical patients in terms of things like wrong or retained instruments, but they also have things, they have nurses, they have a number of employees that touch the patient and interact with the patient and they have liability policies that cover them as well. And so again, if you're a plaintiff or a plaintiff's attorney, you know this, and you want to go to where the money's at and where you can ultimately be successful. Okay, which of the following is the most common cause for instigating or encouraging a malpractice case? And we've talked about this at least in two other slides already, but despite the fact that we would associate things like wound infections, durotomy and pseudarthrosis with malpractice cases, those certainly can drive malpractice cases. But in our series of the 90 claims that we looked at, the most common cause of generating the malpractice case was treatment, words or actions by a subsequent treating physician or surgeon. And again, I highlighted this earlier, but it does matter what other physicians, particularly other physicians in the same specialty say to the patient once the patient comes into their office for a second opinion or for subsequent treatment. We found in our series that about 44% of malpractice cases are strongly influenced by the words and actions of those subsequent positions. So one way to look at this is that while neurosurgery is a higher risk specialty for malpractice, part of the responsibility for that lies with us. We need to be very prudent about what we're telling patients to know the difference between what is fact and what is opinion. Okay, so and as I said, it's certainly true that all of these complications that occur from surgery can generate lawsuits. It's just that when you look at them, they are a less commonly drive malpractice cases than what the words and actions of subsequent treating physicians tend to cause. Okay, so just to recap, kind of this second portion of what we've talked about here, the vast majority of malpractice claims for neurosurgeons arise from degenerative spine cases involving the placement of instrumentation. Take home points here. Again, proper patient selection is essential. We need to be operating on folks that we can help. We need to be able to establish reasonable expectations for those patients. And of course, we then need to execute the technical aspects of that surgery to the best of our ability. Those are our ways to remain safe as a neurosurgeon. Litigants are typically in their most economically productive years of their life. That the average age for a neurosurgery plaintiff is in their 40s. The economics drive this, again, plaintiff's attorneys see clients that are presenting to their office to see them in terms of how sympathetic are they, how likely are they going to be successful in bringing that claim? And again, as we said, most damages come from economic loss, not the punitive or non-economic or emotional damages that we see oftentimes in some marquee cases in the newspaper or on television. We also learned here that postoperative deficits or the lack of deficits are not predictive of future litigation. That it's the patient's definition of success, their expectations that really matters in determining their drive or ambition to bring a suit against a neurosurgeon. The relationship between the surgeon and the patient will likely affect the patient's perception of his or her symptoms. It is true that patients who have good trusting relationships of integrity with their surgeon, the risk is much lower for instigating a suit in those types of patients versus those where the relationship for whatever reason is not as robust. And sympathetic credible plaintiffs will always make for a more compelling story. The truth is, is that as humans, when we communicate, we like stories. We don't like data as much, we like to hear stories. And when a plaintiff's attorney or a jury sits down to listen to a plaintiff or to a defendant for that matter, what they're listening to is the story, is this story credible? Is it cogent? Is it believable? Is this a person of integrity that's telling the story? And again, what we've learned and we've touched on a couple of slides already, but that relationship between the surgeon and the patient is crucial. About 46% of claimants in our series, Brock claims, in addition to improperly performed surgery of some type of care that was delivered in the perioperative period, either before or after. So that relationship, that relationship of integrity between a physician and a patient is absolutely crucial. The other thing to say along those lines is that patients aren't perhaps like our children, they measure the amount that we care about them in terms of the time that we spend with them, both the quantity and the quality of time. So particularly for patients that have had complications or have had less than desirable outcomes, the amount of time that we spend with them trying to mitigate the complications, trying to take care of their complication, that resonates with them. And that's something that is going to pay off in terms of reducing our risk of malpractice when things don't go as well as we would like. And then the other point that we kind of hope touched on several times here that I'm trying to drive home, is that what a surgeon says to patients after they've been treated by other surgeons matters. It matters a lot, about a third of malpractice cases in our series, upwards of 40% in some other series are encouraged or generated by the words and actions of subsequent treating physicians. And I kind of liked this cartoon that I placed down here in terms of karma, what goes around comes around in this world. And when we say things without good factual basis, and mind you, I'm not saying at all here that we protect physicians or actions that are indefensible, or physicians that are just not competent, by no means do I believe that. In fact, we need to do the opposite. We need to really stand up against those types of actions or those kinds of physicians when they occur. But there is, I think still a difference between a fact and opinion and when a patient comes in for a second opinion or for subsequent treatment after being treated by a surgeon, I think we need to recognize that we never know things exactly as they were when that care was ensued by the previous physician. So I would encourage all of us to be careful and thoughtful about what we say when patients come in under those circumstances. Okay, so let's say that a case has been brought up against you and now that you kind of know who sues and why, let's take a look in the next 10 or so slides here what's likely to happen once that case is brought forward. So once a neurosurgical malpractice lawsuit is filed, who is more likely to claim victory? And victory via settlement, dismissal, abandonment of the case, or a jury verdict, is it the plaintiff or the defendant? Well, happily it is for us, I suppose, it's the defendant in our series. So the obvious question then is, why? Why would defendants be more successful? And I think, again, this boils down to a lot of the things that we've talked about already, and that is the story. The ability to communicate and convey the story by both sides, by both plaintiff and defendant in a way that is credible, believable, that conveys integrity. And unfortunately, most neurosurgeons, most defendants are able to do that quite well and to come across to a jury in that manner. Now, another thing that we've kind of been hitting on here is that the economics of malpractice are also a part of what drives the outcomes of these things. So the cost to defend a malpractice suit on average is about $86,000. However, once the case goes to trial, the cost to defend goes up significantly more than doubles to $182,000. So again, this kind of goes back to the beginning of our webinar here when we were talking about all of the cast of characters that are involved. Plaintiffs and defendants both know these numbers. And so again, if the hospital is a part of the suit, they know what the cost of this is going to be. Your malpractice carrier knows what the cost of these are going to be. And so there is a judgment that gets made when it comes down to crunch time on, are we going to go to trial? How good is our case, both on the defendant side and on the plaintiff side? And this ultimately can be what drives the settlements that we talked about earlier. So what happens after a lawsuit is filed? What percentage of cases are dismissed by a court prior to trial? And the answer is about a third. So in our series of 90 claims, about a third of the claims were dismissed by the court prior to trial. So here's what's happening here, is that the court is receiving all the evidence from the plaintiffs, from the defense, and they are saying to the plaintiffs, even if all of these things that you are saying are true, there is no remedy that we can give to your client, to the plaintiff. So for example, there may be a lack of evidence. There may be a failure to show that a duty was owed to the plaintiff, or there was a lack of damages that the patient suffered as a result of the actions of the defendant. So a dismissal is not at all uncommon and a plaintiff can request the case to be dismissed if they think that their case is not sufficiently strong. What percentage of neurosurgical malpractice cases are settled out of court? This also turns out to be about a third, about 37% of the claims in our series of 90 we're settled out of court. This is by far the most common way for plaintiffs to receive payment from defendants. About 92% of plaintiff victories occur via settlement. Now, the reason for this is that sometimes a settlement is really the best thing for all parties involved because of the risk associated with sending the case to the jury. So if either the plaintiff or the defendant, or perhaps both feel that their case is not just iron clad, just absolutely a slam dunk lock, it may be best to go and sell that case before letting it go to the jury for their determination. So again, this is an important part of the process of the poker, if you will going on between defendants and plaintiffs, trying to decide how good is our case? How credible are the people involved with the defendant and the plaintiff? how much integrity do they have? Or are they able to communicate effectively, both in the pre-trial depositions, or if it's settled, even after the trial starts, how credible were they on the stand? All these things are going into considering what to do at that point. The offender neurosurgical malpractice case goes to trial, do the odds of winning favor of the plaintiff or the defendant? And perhaps happily for neurosurgeons that the answer is that most of the time defendants win. And there were only nine cases in our series of 90 that went to trial. And only two of those were the plaintiffs ultimately successful. And the whys of this, I think we've already touched on already. It is the sympathy that the plaintiff would engender. Are they the main breadwinner? Were they able to communicate effectively? Do they appear to have integrity? The credibility of the surgeon. When the surgeon was on the stand, how believable are they? Do they appear to be somebody that would do the right thing, where this was just an outcome that was well not desirable or wanted by anybody and just happened? Or was this surgeon somehow involved in this? Is this a pattern? Did they do things or say for them to say things on during the case that sort of questions their credibility? The skills of the attorney are very important. How this plays out ahead of time, this is how plaintiff's attorneys get their reputation and how defendant's attorneys stay in business. Positioning their clients, positioning the claims in such a way that favors their client and make success more likely for them, very critical. The story we've already talked about depositions prior to trial, when that story is coming out and the ability of the involved parties to be able to communicate effectively, that's all a part of the why plaintiffs or defendants will win in court. And again, the expert's credibility, which we talked about it at the beginning. In the last couple of sides, I just wanna make a brief comment. What about the medical record? So the medical record or the plaintiff's bar, is really the sine quo non, it is everything to them. They would like to use the medical record as much as possible as a sword against the defendant surgeon. However, recall that a medical record is only an account that fulfills the needs of the person that wrote it. Now, obviously when we record in the medical record, we don't record everything. We don't record everything that we do as a usual and routine part of our practice. We may not say, I scrub my hands for five minutes and double gloves with size eight Ultravac's gloves, if that is what we do every time. So that in a deposition, doctor What did you do before the case to prepare your hands? Well, I did what I always do, which is scrub my hands for five minutes and blah, blah, blah. Well, it's not in the medical record. No, it's not. Why is it not in the medical? Well, because that is my usual and customary practice. I always do that. My point being here that the medical record is not everything. It has an account of what you need it to be. You need to put enough detail into the medical record to make adequate recollections of what happened at that time. If a circumstance requires more things to be written down, then do it. If it doesn't, you don't need to put it in there. And the absence of it in the medical record doesn't mean it did not happen. And I think the corollary to this is that good medicine is good medical, legal medicine. I hear my colleagues talk about this sometime. Oh, we did this for medical legal reasons. Well, I'm not always compelled by that. I think in most cases, good medicine is good medicine when it's practiced at that moment. It is good in retrospect when we look down the road, if a malpractice case is brought against us. So doing the right thing is never out of fashion for the patient at all. So to kind of recap what we've learned here in this third portion, if you are sued, you contact your risk manager at your institution or your malpractice insurance carrier. You may want to warn your colleagues in the group and your neurosurgical group that the group may be brought in as a defendant, or co-defendant on this and involve colleagues in the case if they're from outside of neurosurgery. You are going to be angry that day that you get that subpoena in your lap. It has happened to me. It was not the best day of my life. I was angry, I was resentful, but after a while, when those emotions start to subside, when you calm down, then you start to look forward and you say, okay, dismissed or to ultimately win in court. And that means that we need to prepare. You need to go over everything with your counsel, with your attorney, to be honest with him or her about all things good, all things bad that happened in that case. And again, there is reason to be confident as we've just talked about here. The odds are with you both before court, and if it goes to jury in the courtroom itself. And finally, I always like this quote from Napoleon. And that is, he said, "I based my calculations on the expectation that luck will be against me". And I guess to paraphrase that in my own way, I believe in luck, I believe in bad luck. I believe I will have it and I plan accordingly. This is just to say again, practice good medicine, be thoughtful, establish good relationships of integrity with patients, that is all an investment. I think ultimately in avoiding malpractice, should it occur. Despite our best efforts, bad things still happen. And sometimes patients still bring suits against us, even when we have done everything to try and forego that from happening. I guess what I think Napoleon would say if he were here, is you should expect that. And you should plan accordingly, make your medical record reflective of what you need it to be, be honest, be truthful and despite the bad luck, the outcomes should be favorable for you. Thank you very much.
- Alan, thank you for such a spectacular amount of information, which is so important to all neurosurgeons. Just a few important points that I find very useful and questions. Let's say, apparently if you get sued, no matter what the result of the suit is in terms of dismissal or settlement, this will be listed on the physician bank. And that the outcome will also be mentioned. So even though it was extremely frivolous, you will have that suit with your, let's say with your career, the rest of your life, every time you request privileges at a hospital, is that correct?
- Correct, and I guess I would make a comment along these lines that, of course, none of us wants to have that kind of information out there that we were sued many times in frivolous ways. But I would also add that, who's it gonna really impact? Your future employer, I guess, if you were to switch jobs, that could be a concern, but when you're able to explain, I think how things got there, good or bad, I think that's very important as well. So just because something's in a national practitioner data bank, along with its outcome, whether dismissed or settled or tried in court, I think the narrative that goes along with it is equally important.
- And I think one very important factor that you just mentioned that I would like to make as the closing argument, if you don't mind, is that it's very easy to be critical of other surgeons who have previously seen a patient who is here for a second opinion with you. And, both the lawsuits that I have had, one was settled and one is under review in my career so far, have been because the patient requests a second opinion, and the other neurosurgeon felt strongly by criticizing the care when he or she did not have all the information available. And that is so important. Unfortunately, as neurosurgeons, maybe sometimes unintentionally, we become very critical of what our other colleagues do. If we have a patient who has been taken care of in a really inappropriate way, we have to be honest and protect our patients against bad colleagues, but those scenarios are extremely rare. However, if a patient comes in to see you and they, you don't know the details, it's best not to become over criticizing the initial neurosurgeon or physician in the hope that that makes you become a better person or better neurosurgeon. I think this is extremely important than all of us have to keep in mind that we're colleagues. And if we don't know the details of the case, we better not comment on what happened with the initial neurosurgeon, don't you think so?
- So Aaron, well, I think that that data shows and the message that I hope we can get out here is none of us should protect or descend actions that are indefensible, or colleagues that for whatever reason are not competent. In fact, as I said before, what we should do the opposite, we should stand up for them. We should say this is not right. That a patient was hurt because of actions that were clearly negligent. I guess I would just argue that that is fortunately rarely the case. More commonly, we see a patient in a subsequent time after that initial treatment. And we don't have the advantage of seeing things as that physician saw them at that moment, but the details are very critical. And so I think, as a subsequent treating physicians, we just need to be very honest and thoughtful in our comments. We need to tell the truth and say, this is what's fact, this is what's opinion, that we'll never change that we were not there at that moment that those decisions were made and all the details that were part of that decision or part of that surgery, we are not privy to. So there are people who get paid to really dive through a medical record, to go through the details and try to determine culpability. And they were paid well for them. But as a subsequent treating physician, that is not our role. Our role is to take care of the patient at that moment. And as we've talked about here, the words and the actions that we use and the actions that we have at that time are very critical in determining for that patient, what they may do down the road with regard to instigating a litigation against the prior surgeon.
- Very well said, thank you so much, Alan. And we look forward to have you with us again in the near future.
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