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Medical Malpractice: How to Avoid It and Deal With It

Richard Wohns

February 15, 2021

Transcript

- Dear friends and colleagues, thank you for joining us for another session of the Virtual Operating Room from The Neurosurgical Atlas, my name is Aaron Cohen. Our dear guest today is Dr. Rich Wohns from Wohns Consulting. He's a practicing neurosurgeon with more than 30 years of fruitful practice. He did his law school in Seattle University. He has clinical appointments at the University of Washington and Tribhuvan University Teaching Hospital. He's a member of the Professional Conduct Committee of the AANS, and also a commissioner at Washington Medical Commission. In addition, he's a volunteer neurosurgeon in Nepal and Maldives Islands. Rich, I want to really thank you for being with us today. Malpractice in neurosurgery is, or has become and will be a very important part of our practice. We really have to know how to deal with it, how to manage it, obviously how to avoid it. As a resident and early faculty in our career often we don't get the exposure that we need, and I think this is an extremely important topic, so I really appreciate you going through the more advanced nuances in dealing with this important issue. I'm looking forward to learning from you and please go ahead.

- Well, thank you very much, Aaron, I appreciate the invitation and look forward to this hour of discussion regarding a very important subject, which as you mentioned, we don't really hear about during our residency, but unfortunately we hear about it more and more as we practice longer and longer. And as a introduction to this subject matter, I'd like to briefly quote an interesting Nietzsche statement from 1888, which we all use on a daily basis and which is very germane to this concept of how we as neurosurgeons deal with neurosurgery, believe it or not. Nietzsche said, "Out of life's school of lore, what doesn't kill me, makes me stronger", we all say that. This is an overused and kind of a parodied aphorism, but it accurately portrays the picture of resilience and affirmation for overcoming adversity, and I recommend that this concept is applied to the formidable attack of a medical malpractice lawsuit directed at you personally, and your neurosurgical practice. It's inevitable that we are sued. The statistics are amazing, and most people don't know it, but by the time that you're in your 60s, more than 90% of us are sued. If we look at a medical malpractice lawsuit as an inevitability for most of us at some point in our career, we have to figure how to deal with this in advance rather than all of a sudden being hit with the subpoena and the fear of what's gonna happen. So part of this understanding of how to deal with it really should be taught during residency, but it's not too late. Those who are out in practice, we can go through the basics of what is a malpractice lawsuit, and mostly, how do we try to avoid it, and that'll be the end of this talk. So if we have the right mindset and recognize that this is an unfortunate reality of modern medicine, and we apply Nietzsche's dictum, "What doesn't kill us, makes us stronger", we can turn the malpractice case against us into an educational experience from which we can learn to be an even better neurosurgeon. And I think it's really important that we get this as early as we can in our careers, and residency is a really good time to do it, so I would really like to see a medical negligence course be given during residency. But we have done courses like what we're going to go through here in this next hour for bootcamp-type residency sessions through the AANS over the years, and this has been very useful and the chief residents who attend these bootcamps really learn a lot and go away thinking, "I can now deal with an aspect of my future practice that I really never heard of before". So let's get into it, we're looking at medical negligence, which is actually the correct technical name for a lawsuit rather than medical malpractice lawsuit. What is medical liability will be the first subjects of our talks today. We'll go over what it is to be an expert witness, what is required of an expert witness in a medical negligence case, what are the defenses to a medical negligence case, what are the statute of limitations, the concept of contributory negligence. Then we'll move into defense management, do's and don'ts when you're a defendant, we'll talk about depositions, we'll talk about do's and don'ts in settlements and trial, and then we'll talk about what are the risk factors for a malpractice suit or a medical negligence suit. So let's get to the foundational definitions, this is Medical Liability 101, just like you're in a law school class here. So one of the first concepts we need to talk about is expert witness. This is a Federal Rule, 702, an expert witness is a witness who is qualified as an expert by knowledge, skill, experience, training, or education, and only those people who are thereby qualified can testify in the form of an opinion if the expert's scientific, technical, and specialized knowledge will help the trier of fact, the judge and the jury, to understand the evidence and determine the fact at issue. If the testimony is based on sufficient facts or data, the expert witness is going to be very helpful. The testimony has to be the product of reliable principles and methods, and the expert has reliably applied the methods and principles to the facts of the case. The expert really cannot just get up and say, "Well, this is my opinion", the expert has to reflect what's out there in the scientific community, and there are two legal tests that they have to follow. One is the Frye Standard, and one is the Daubert Standard, I've outlined it here in this slide. This is a guideline for expert opinion admissibility, so if an expert comes up with some opinion and it doesn't have any basis in science, it's not tested or testable, it's not based on peer-reviewed literature or published, it's not a known issue that has been discussed in the medical community, it doesn't have existing controls or standards, it can be thrown out by the opposite side, so it's very important that if you're an expert witness or if you're a defendant and bring on an expert witness, that the expert witness does not use out there theories that he's come up with to defend you, the defendant, in a malpractice case. And likewise on the plaintiff side, it's very easy to get an expert's testimony thrown out who's testifying on behalf of a plaintiff if they don't follow scientific criteria in their testimony. So the requirements for expert witnesses is very stringent, you really can't get a medical negligence case to a jury now without an expert, and that's pretty much in all the states. And the case has to be able to survive a motion for what's called summary judgment. That means that if the plaintiff pleads that they've been damaged, there's been negligence on the part of the defendant, and the defendant really just has to say, "We complied with the standard of care", and then, "Show us that there is a genuine issue of material fact that we didn't comply with the standard of care", then the plaintiff has to come up with a declaration or an affidavit from an expert witness that says that the defendant did violate the standard of care. And it's really important to understand what the standard of care is, if you think about it in your own minds, can you define the standard of care right now? Is it the standard of practice out there? It's not, and I'm gonna come up in a couple of seconds here with a definition that you should always remember as to what is the standard of care. The vast majority of cases require an expert to survive the summary judgment, and the primary exception is what we call res ipsa, that means if I hold up an X-ray and there's a clear-cut fracture on it, and the defendant just missed it, the radiologist missed it, the neurosurgeon missed it, and the patient became paralyzed because they missed the fracture, that's a res ipsa case. You don't have to have an expert, the plaintiff attorney could hold up the expert, sorry, the X-ray, and say, "Look at this", it really settles the case right there and then, there's no defense. So expert witnesses must testify as to the standard of care, relying on published guidelines is not enough, and standard of care is defined in a number of ways. So let's go back and talk about experts using their own experience and training, pharmacy inserts, treatises in textbooks, practice guidelines can be used but they do not establish standard of care. The standard of care is really, what is, on a case-by-case basis, the degree of care ordinarily exercised by physicians in the same specialty under the same circumstances. And an expert witness has to give that definition when they're talking about whether or not the defendant, you, the neurosurgeon, who's on trial in a malpractice case, in a medical negligence case, whether you have breached the standard of care. You have to have recognition specified as to what your duty is and how you breached that duty, and this has to be brought out by the other side, that you had a duty to follow the standard of care, you breached that duty, and because of that duty that's been breached, there were damages suffered by the plaintiff, and it's your fault, because of your breach of the standard of care, in other words, what an ordinary neurosurgeon in the same specialty would have done in the same circumstances. And it's a national standard, it's not what a neurosurgeon would do at a university setting at the main city near you, it's what an ordinary neurosurgeon would do in any situation of a similar nature anywhere in the country. So this is important to understand, the degree of care and skill and proficiency commonly exercised by our colleagues in neurosurgery are what defines the standard of care. And an expert witness has to be able to state what that is, it's not what the expert witness would have done, it's not what a professor at the University of Washington or University of Indiana would have done, it's what one of our colleagues would have done exercising reasonable standard of care under the same circumstances, this is something I'd like to drill in because this is quite important. So moving on, if you have an expert witness, the AANS has certain rules that the expert witness must follow, particularly true on the plaintiff side of things. So if the plaintiff hires an expert witness and he doesn't follow the rules of the AANS Professional Conduct Committee, which, as Aaron mentioned, full disclosure, I'm on the Professional Conduct Committee, this is very critical because the expert witness neurosurgeon must follow these rules, otherwise they can be sanctioned by the AANS and they can go through a hearing process at the Professional Conduct Committee, and it's important to understand these rules. And the rules are, number one, you have to be an unbiased educator to the court system. Your testimony has to become an impartial rendering of what the standard of care is and how the defendant neurosurgeon breached that standard of care, and how there's causation because of the breach that led to damages. You have to know your material, the subject matter knowledge has to be significant. And your compensation has to be, basically, not on a contingency basis but just on the hours you've spent reviewing records, reviewing films, conferring with the attorneys that hired you to help defend the defendant neurosurgeon, and then your time spent in depositions and in trial. So keep that in mind because it's very important to understand how it's a critical thing for us to be providing expert witness testimony on behalf of our colleagues, or on the other side, on the plaintiff, if there's a case that you're shown and you firmly believe that there was a breach of the standard of care, it's important for us to police ourselves internally, and you should feel okay about testifying as long as you're following the rules and that there was an honest to goodness breach of the standard of care which led to damages, and that you can testify, unbiased, on behalf of the plaintiff. So common errors by expert witnesses. First of all, it's not required that you use Class I evidence. The court does not require Class I evidence, it really just wants to know what is the standard of care, and only physicians of the same specialty can give that, lawyers can't do that, so we have to be able to do that and we don't need Class I evidence to support that. Don't be excessively dogmatic, don't fight with the attorneys, give different viewpoints, consider the full range of the standard of care, don't testify outside your area of competence, know the facts, as I mentioned, and don't create some hypothetical defense or hypothetical plaintiff approach from an expert point of view that you can't support by science, and you'll be attacked by the Frye and Daubert principles that you need to follow if you're creating some hypothetical plaintiff approach to why the defendant breached the standard of care, you've got to use science. So understand that there's a majority and there's a minority in pretty much everything in medicine, nothing's 100%. And you have to understand that in law there's a respectable minority role. While most doctors would do treatment number one, a respectable minority might do treatment number two. You can't require herd mentality, there is a respectable minority who still abides by the standard of care, and it's important to understand that if a physician is in the minority, he can't be liable for selecting one or more of those alternative courses in the minority, if arriving at that judgment, he's still following reasonable care and skill within the standard of care. If they're totally an outlier and there's no way that they were within the standard of care, that's a different story. So it's important to give a lot of latitude here, and that's particularly true on the plaintiff side. If you're taking on a case as a plaintiff expert witness, understand that you can be held by the Professional Conduct Committee by not respecting that the respectable minority rule is something that we have to follow, that if they were in a minority but still within the standard of care, as a defendant, that's okay. So, and as a defendant expert witness, recognize what that full standard of care is and even if they were outliers in a minority and they weren't outliers because they weren't following any reasonable standard of care, then defend them and use that standard of care breadth as your defense. So moving on in our foundational 101 lecture here. One of the defenses in a malpractice, in a medical negligence case, is an affirmative defense regarding the statute of limitations. So it's usually three years in most states, but it's technically possible that it can go beyond three years if the plaintiff, the aggrieved patient or family, didn't discover that there was a potential negligent act even for more than three years after the act was committed. So when does that statute of limitations start to run? Generally it's three years after the alleged negligent act occurred, but it might not be for eight or 10 years, for instance, if the patient or the family finds that eight years after a surgery on subsequent followup by, let's say, another neurosurgeon, it was seen that there was a Cottonoid, a pattie, or a sponge left in the wound, and for eight years they didn't know that. Well, they're not blocked from filing a medical negligence claim at eight years after the act was committed. It is okay to file and it's acceptable because the statute of limitations actually then begins when they found that injury had occurred eight years ago, so the statute begins to run eight years after the act and runs for several years from that point. Contributory negligence is another element of Medical Liability 101. This is something that is an important principle, so it's a percentage contributed by fault of the plaintiff. It's the plaintiff's duty to mitigate damages, so if a plaintiff is partially at fault to his or her own damages, that percentage has to be recognized. So the defendant neurosurgeon can say, "Well, I did my part, I complied by the standard of care but the plaintiff did X, Y and Z and caused his or her own damages", to whatever degree, 50%, 100%, 10%, it's got to be stated that, if there is contributory negligence by the plaintiff, this is a point that's got to be brought out, because in the end, if the case is settled or there's a judgment in court against the defendant, the defendant's attorneys have to be able to say, "And X amount of dollars is being levied against my client", the defendant neurosurgeon, "but 50% of that is due to negligence on the part of the plaintiff", so immediately damages are cut down as to what is provided in a judgment to the plaintiff. Now, another part of this is understanding another legal term, quote unquote, the eggshell plaintiff, the eggshell skull rule, and if the defendant is pointing to the plaintiff, saying, "Well, it's partly your fault", you also have to recognize you take the patient as they present. If they have all these risk factors, you can't go blaming them, you take them as they come. So if you have, in a personal injury case, in a medical, not a medical negligence case but a personal injury case, you have the driver of a vehicle who has all kinds of medical comorbidities and gets into a car accident that they end up with all kinds of damages, you can't say, "Well, it's their fault 100% because they had so many different medical comorbidities", you take the plaintiff as they come. You don't blame them for all their comorbidities, they're just like anybody else, they were damaged and it's not their fault that they have all kinds of other issues. So in a medical negligence situation, the defendant can't blame an eggshell plaintiff, an eggshell patient for their pre-existent problems, they're part of the package. So it's only if they were negligent in their care after the alleged negligence took place, for instance, they knew they had an infection and they let it go, they didn't tell the doctor for three weeks, well, that's entirely their fault and is part of contributory negligence. So it's important to recognize that when you're being alleged to have caused somebody's problems, if it's partly the patient's fault, you have to be able to state that. So moving on, let's talk about, now you're named in a lawsuit, in a medical negligence claim, what do you do? This is important, because there's certain things that you should do, and there's certain things that you shouldn't do. So number one, let's talk about what you should do. So if you know there is an adverse medical outcome, adverse surgical outcome, be available to the patient and their families, don't shun them, don't say, "I can't talk to them", most medical negligence suits are initiated by people, either patients or families, who feel that their doctor didn't communicate adequately, or they were treated in an uncaring manner. Make sure you have thorough records that reflect all of your clinical decision-making. Focus on the patient who's coming back to you and saying, whatever's going on, and you can tell that they're very upset or they have a problem, or they have a foot drop after a TLIF, focus on them, keep good records. And what's important is it's okay to say you're sorry for the outcome, it's okay to say you feel badly about how they've done, and what you should do is recognize that that is actually protected and a privileged thing that can't be brought up later by the plaintiff's attorney that says, "Well, he apologized". Apologies are part of medical care that are actually privileged, and that's true for up to 30 days after a lawsuit is filed. Excuse me, after filing and after 30 days you don't apologize because that's no longer privileged, but early on, that's part of the compassion and the communication, up to 30 days after a lawsuit's filed that is acceptable and actually helps placate some irate patients and family, when they recognize that you feel badly, you're saying you're sorry, you're not admitting fault, but you're saying you feel badly about the outcome. Don't just accept their memory of what happened, make sure you have good records. Don't make statements such as, "If I had seen you earlier, I could have helped you more", don't use terms such as negligence or malpractice. You can say, it's a problem, you've had a bad outcome, it's not your fault but you feel badly about what's happened and you're here to help them through this. So if you do get notice, notify your insurance company within that 30 days, review the records, start meeting with your attorney, be candid and open, all those discussions with your attorney are privileged, not discoverable. Do not talk with the plaintiff after that period of time or anyone else, the plaintiff's attorney, colleagues, anything else is discoverable, except for that apology for that first 30 days. Number one thing, I should say, actually is, do not change anything in the medical record, don't change misspelling, don't do anything that changes anything in the medical record. That can completely destroy your credibility, and that could lose your case no matter how defensible your case is. So the records should be untouched, you read them, give a copy to your attorney, and don't think of changing anything, don't add anything, don't change a date, don't detract anything from the record, everything stands as it is. So the next phase of this is discovery and depositions, is when the other side starts wanting to get your records, get your verbal take on what happened, and ask you a lot of questions. They'll start with interrogatories, which are questions sent to you, which you and your lawyer will answer, and then the key thing here is understanding what depositions are all about because this is a very important part of a medical negligence lawsuit, and you really have to know how to conduct yourself in depositions. So depositions are used to gather evidence and information prior to a trial, way more than interrogatories. They're fact-finding missions similar to testifying in court. Attorneys on both sides are present, so they can ask questions, hear answers, object to each other's questions. Depositions are done in a question-and-answer format. At a deposition, you appear at a specific time and place and give sworn testimony under oath, with a court reporter. You are able to choose when and where these depositions are conducted for you, but there's gonna be a lot of other depositions that are done, there are gonna be depositions of your patient, the plaintiff, their family members, there'll be depositions of expert witnesses on both sides, there'll be depositions of other physicians, nurses involved in the case, maybe radiologists, anesthesiologists, other neurosurgeons that were involved, emergency doctors, nurses taking care of the patient, tons of depositions. So, in your deposition, and that's what we're gonna talk about today because that's the only one that you can control, it's stating the bleeding obvious, so to speak, but always tell the truth, always tell the truth, do not change the truth, and maintain your truisms throughout the course of the case. Make sure that if you're deposed and then later in court you're asked the same questions that you were asked in a deposition, that you provide the same answer, don't change your answer in court from what you said in a deposition. So if you start with the truth and stick with the truth, that's not an issue, the problem is if you say one thing in one setting and another thing in another setting, that is extremely damaging. So, moving on, in the deposition, as I said, you call the time and place, do it in your office, do it at a comfortable time. Don't do it at the end of a busy day when you're tired after doing four or five cases in the OR and then you call the deposition at five o'clock at night and you run it till eight o'clock at night, that's not good. Do it when you're fresh, do it when you can be totally focused on what you're doing, this is important stuff, don't just stick it in in between patients or at the end of the day. When you're on the hot seat, having been sworn in, take your time answering questions. Don't just jump in or talk over an attorney asking you a question, particularly if the plaintiff's attorney is asking you a question and you know where he's going, don't start answering him, let the plaintiff's attorney finish his question before you start answering, and give a little pause so that your attorney, your defense attorney can object if the question by the plaintiff's attorney is objectionable from a legal point of view. Recognize that you don't have to always have an answer to every question, you can say "I don't know", or "I don't remember", those are acceptable. And always answer the question clearly, don't say "uh huh" or just nod your head, the court reporter has to hear your voice succinctly and clearly, so don't use a lot of medical phrases unless absolutely necessary, answer the question really clearly. Answer only what is asked, do not elaborate unless absolutely necessary. Be very careful if the plaintiff's attorney has asked you a hypothetical, say, "Is that a hypothetical question?", not just go and answer it, because they'll trick you, and they'll use the hypothetical to come back and haunt you later on. So if you hear a question, sit back and say, "Is that a hypothetical question? I don't think that relates to this patient in this situation", call it out, call a spade a spade. If it is a good question and it relates to your patient and the case, listen carefully. If it's a compound question, say to the plaintiff attorney, "Could you restate the question and give me one question at a time because I think your question actually had two or three parts to it", be very nice, be very straightforward, but make sure that you're not answering hypotheticals without stating it's a hypothetical that has nothing to do with your case, and that your compound question is broken down for you so you can answer each part succinctly. And on the don'ts, I already mentioned one of them, don't argue, don't fight with the plaintiff's attorney. And don't help the plaintiff's attorney if they're confused, don't clear up their confusion. If they ask you a good question, give them a good answer, and you can say "Yes", "No", or "I don't know", you don't have to elaborate. If they're confused and you're trying to help them, don't try to help them. Don't be arrogant, don't be arrogant, what else can I say about that? Come across as the compassionate, intelligent, caring, honest person that you are, not that you know more than other people in this situation, which you do, but this is not the time to show how smart you are, it's a time to show how caring you were, how you did everything appropriate, according to the standard of care, that you're there to help the plaintiff's attorney understand what went on, know the facts of the case, tell them what happened, why it happened, that it wasn't necessarily because you were negligent. And then moving on, if the attorney is insisting that it wasn't in the record, after you said something, don't let them pull that. If, the old adage, if it didn't get in the record, it didn't happen, that doesn't fly. You have to tell them, "We don't put everything in the record, it happened, I'm being truthful, this was what happened. It's not in my operative summary, it's not in the records, but this is what happened". If we were held to the standard that everything that we do or say, or everything that happens is somehow magically included in the medical record, we'd have to have court reporters or scribes with us 24/7 under all circumstances, it's just unreal, so make that point. Also, if somebody else did something that contributed to the plaintiff's case against you, don't try to figure out why they did it or what they were thinking, don't guess, just say, "That's something I can't answer, you should depose that other doctor and ask them what they were thinking, why they did what they did". So you may know in your mind something because you're smart and you've been in these circumstances before, but you don't really know, you have to say, "I wasn't there, I didn't make that decision, somebody else did", recognize it, keep your blinders on in terms of the straight and narrow course that has to be followed when you're in a deposition that you don't need to be expansive and show that you know everything about this case. If you weren't there or if it's somebody else's issue, or if their plaintiff attorney's making something up as a hypothetical, you don't have to be answering everything at all times. Okay, moving on again, you're now in the situation where all the depositions are done and you get a flavor of how this case is going. You started out saying, "I'm gonna defend this case. This case is defensible, I didn't do anything wrong, I'm getting railroaded, I want to go to court", and then you go through months, years of interrogatories, depositions back and forth and you've met with your attorney, and now you can sit back after hearing what the other side has come up with, you've read expert witness depositions, which you absolutely have to do, that are your expert witnesses but also the other side's expert witnesses, and then you sit back and say, "Wow, my defense is not as great as I thought here, my own expert witness or expert witnesses say that I didn't breach the standard of care, but there's some weak spots in my own defense here that I didn't understand, and the other side, boy, they've got some expert witnesses or an expert witness that is going to be really, really formidable on the stand in front of a jury, and they're gonna make me look really bad". So if you feel like your defense is weak and you just want to try an out-of-court settlement because you're afraid that if this goes to the jury, you could end up with a bad judgment against you that not only will you be considered liable, but the monetary damages could be substantial, and you would have given up weeks of your life and your practice to go to trial, and you're thinking, "This is weak on defense, I don't want to sit there for three weeks going to court every day, taking all that time off from my practice and my life, and I want to settle this". You just say to your attorney and your insurance company then gets involved and they're gonna talk to you about risk management, they're gonna say, "Why don't we try to settle this for this amount of money, keep you away from the jury, and then you don't have to go to court". Or you may just say, "Hey look, I'm tired of this, I can't take off three weeks, it's gonna cost me X number of dollars and it's gonna hurt my practice and I just can't deal with it", some people are like that and they just say, "Settle this, I don't want to go to court", even if they have a decent case, and we'll talk about whether or not your insurance company is supporting you in your decision, and your attorney is supporting you in your decision. If you have a strong case, it's different from if you have a weak case, because if you have a strong case, the insurance company is gonna recommend, and your attorney's gonna recommend, "Go to court because we could probably win this case", and your worry about missing three weeks of practice will have to be discussed as less important than you saving your reputation, you saving a lot of money from a potential runaway jury, if, indeed, the insurance company thinks this is a very defensible case, your attorney thinks they're gonna win, excuse me, so that's gonna be a big discussion. So let's talk about the do's of out-of-court settlements. If you settle and you obviate the need for a trial and going in front of a jury and a potential runaway jury award, recognize that if you pay any money, meaning your insurance company, not you, but your insurance company pays any money on your behalf to settle a claim, that you still are reported to the National Practitioner Data Bank. This is a federal data bank that all cases that have any monetary settlement or judgment has listings of you and what the case is all about. Now if you go to court and you win, not a penny exchanges hands, there's no filing to the National Practitioner Data Bank just because you were sued, because you won, but if you settle a case or if you go to court and you lose the case and a judgment is made against you and money exchanges hands, then your name is in the National Practitioner Data Bank, what does this matter? Well, it matters for credentialing, if you are applying for licensing or hospital privileges, also insurance companies will know so that your rate might change, might not, but it might, particularly if there's multiple filings, but if you're, let's say, applying to a different hospital for privilege, they will know that you've had a claim against you and this amount of money exchanged hands, that may be an issue in certain situations, may not, because if you harken back to my introductory remarks, pretty much the majority of us will have a lawsuit at some point in our career, and whether or not there's money that is paid on behalf of our lawsuit in a settlement or a judgment is another question, but the majority of us will end up, at some point, with a settlement or a judgment by the end of our career. So the National Practitioner Data Bank is a black mark, but it's a black mark that, eventually, there's a good chance that all of us end up in there, for one reason or another, by the end of our career. Now, early on in the career that's not the case, so if you're a young person and you're worried about, "Well, I might want to change locations or I might want to join this other group, and they're gonna see that I've had a case against me that was settled for a million dollars, or went to judgment and there's a $3 million payout with a quadriplegic case, I'm gonna have to defend that verbally and discuss that for the rest of my career", so you have to think about that, that if you think you're gonna stay away from the jury and settle a case, it still goes to the National Practitioner Data Bank. Let's say you do go to trial, you say, "This is defensible. I'm gonna take my three weeks, I'm gonna sign out of my practice, I'm gonna defend myself, I didn't do anything wrong", how do you behave in a courthouse? It's different from how you behave in your office, in your operating room, at home, there are certain do's and don'ts, so let's go through those, because, again, it's important to do certain things and not do certain things. Number one, come across as a nice guy who's there to engage the jury, look at the jury, answer their questions directly by looking in their eyes, teach the jury, show them what a great guy you are, how much you know, express sympathy for the patient and the family. You can say, "You know, I'm really sorry this happened but I'm just not responsible for it", you remember that line, if it's true, remember, always be truthful. Come across as somebody who is able to open your heart up and say, "This is something that I'm really sorry happened, but I did everything I could to take really good care of this patient at all times, and there was a bad result, some complication, these things happen, and it doesn't mean that there was negligence on my part. I'm a really careful neurosurgeon, this really hurt me that this happened, but it's not my fault", it's okay to say all that. Don't just be an arrogant guy that, you know, you show how much you know and quote all literature and say, "70% of the time this happens, 10% of the time this might happen. Paraplegia after a thoracic disc is a known complication, I don't know how it happened", just talk like you're an honest to goodness, caring, smart neurosurgeon and make the jury feel like, "Hey, I would have liked to have been a patient of this doctor, or I want to be a patient of this doctor if I ever need a neurosurgeon", do that, that'll help you a lot. Don't use a lot of medical terminology, don't be arrogant, don't fight with the plaintiff's attorney, come across as a nice guy who knows a lot and be really very nice to everybody in court, the jury, the judge, say "Your Honor", be nice to the plaintiff's attorney, say "Yes sir", anyway, you get the idea of how you should behave in court. Now let's talk about how do you end up in a situation like this? This'll be our last slide, and I'm gonna spend a little bit of time, because obviously in neurosurgery we try to prevent complications. Well, let's talk about what are the risk factors and how might we prevent a medical negligence malpractice suit? And as I mentioned earlier in those introductory remarks, this may not be preventable, but there are certain statistics that you should know that, always think about this on every case and it might help you keep the numbers of lawsuits down throughout your career. Number one, spinal surgery carries the highest litigation risk versus cranial and peripheral nerve surgery. Think about that, that the majority of neurosurgeons, the majority of their practice is spinal surgery. Of course, if you're a specialist in aneurysms or a specialist in spine surgery, it's a different story, it's all spine surgery for the specialists in spine surgery and zero spine surgery for the aneurysm specialist, but in general, spine surgery carries the highest risk. If you have a general neurosurgical practice and you're picking up emergency cases that are a lot of intracranial pathology, those aren't the high risk cases in your practice, it's the elective spinal cases that are the high risk cases. And point number two, in those spinal cases, claims are most commonly because of faulty surgical technique and/or delayed diagnosis or misdiagnosis, and those cases have the highest success rates and payouts. So think about that, faulty surgical technique. Well, you're a neurosurgeon, how often are you using faulty neurosurgical technique? Think about how you handle every little thing in surgery, so if you're doing pedicle screw fixation, if you're repairing a CSF leak, do it according to the standard of care, don't take shortcuts, don't use anything that might be later construed as faulty because that'll come back to bite you. In your practice, particularly nowadays when we're supervising mid-levels a lot and the chance of an error in the next category here, the delayed diagnosis or misdiagnosis, is higher than if, let's say, you're seeing all the patients. So let's give a scenario, delayed diagnosis or misdiagnosis, again, let's go with a post-op spinal case that comes to the office, and there's a mid-level seeing the patient, you don't know about the follow-up, the mid-level kind of writes off some things that maybe had you seen the patient, you wouldn't have, like a patient that has a very low-grade temperature, a little headache, had a CSF leak, had surgery, and comes back with some minor symptoms but is not doing well, doesn't feel good, and they're given something like antibiotics and a follow-up appointment in three weeks or two weeks by the mid-level, just recognize that could be a disaster for you. So supervise your mid-levels on your own accord, don't write off things that could be a problem should they be the disaster that you think it might represent but you're saying, "Not likely". Delayed diagnosis and misdiagnosis, better to err on the side of conservativism at all times, so if you think they have a pseudomeningocele or a meningitis or an abscess, even if it's a 5% chance, do something to show that you're ruling out those possibilities rather than just writing them off and delaying or misdiagnosing something that could end up being a disaster, because, I can tell you, it'll be portrayed as a misdiagnosis and a delayed diagnosis and a breach of the standard of care and get you to lose your case if it comes back as a medical negligence case. So, again, faulty surgical technique, faulty surgical technique, let's talk about pedicle screws, what's the standard of care now? It's still open or minimally invasive but robotic guidance or neuronavigation guidance is more and more utilized, it's still not the standard of care, it might becoming more a standard of practice in many cases but it's not the standard of care. But how could a misplaced pedicle screw be considered faulty surgical technique if it happens frequently, which, as we all know, it does. If you look at, even in experienced hands, how often is a pedicle screw misplaced? It's very, very common, even in the best of hands. So what's your defense if you misplaced one? Well, defense would be, "I did everything possible during surgery to guarantee proper placement, and here are my post-placement fluoro views from surgery that shows good placement in the pedicle, and here are my neuromonitoring data points showing that the pedicle screws did not breach the pedicle", so you used good surgical technique, you did your checks and balances, and it still happened, it's not your fault, you didn't breach your standard of care, you didn't use faulty technique, so always try to use proper surgical technique and in the cases that are high risk, don't take any shortcuts. Let's move on because I'd like to close out here in the next minute or two. In brain surgery, we have misinformation, so anytime you're doing cranial surgery, make sure you have all points of information. Make sure you document everything at all times, thinking that every document might end up in court. And with patients, my closing remarks, just like I started out with, talk to your patient, thorough communication at all times, use complete, open discussion as far as risks and benefits, options, and then be meticulous, and maybe using all these techniques you can minimize litigation in your neurosurgical practice, but it's gonna happen no matter what. If you have a defensible case, defend it, if you have an undefendable case, settle it. And on that note, I'm gonna close this discussion and I hope to be available on Monday for questions and answers. Thank you very much.

- Thank you so much, excellent talk, really great pearls. These are simple maneuvers to avoid litigation, avoid negligence claims, and really focusing on those principles are so important. It's amazing, when you get the letter, how emotional people get, defensive they get, overreact, and that itself can cause more damage than the claim itself. It's just like managing a complication in surgery, it's often not the event of the complication that leads to the most damage, it's the reaction of the surgeon. So I think all of us should keep that in mind, how we react to it, how we deal with it is such a big part of the process, don't you agree, Rich?

- I totally agree, and if I can take one minute and give a little example of exactly what you said, Aaron. You know, we're trained really well to do neurosurgery, we're not trained to deal with that letter that comes at some point in our career. So I likened this whole process to martial arts training, so neurosurgery is like martial arts training where you work your way through the years of your residency and your fellowships, learning more and more, going from white belt up to black belt. On martial arts, you go through the ranks and attain your black belt with incredible preparation, which partly involves parrying attacks. To parry is defined as warding off a weapon or attack with a countermove. The same approach should be taken with medical negligence lawsuits. We need to be trained from the early days of our residency that this type of attack is very likely going to happen during our career, and therefore the best way to prepare for this attack is preemptive rather than reactive. So like you were saying, Aaron, don't just react with all kinds of emotional or negative things, be prepared, know what you need to do in advance, and then you'll react properly and you'll come out with the best possible outcome.

- Well said. One has to also mention that those emotions are normal, one can't just say that, okay, maybe don't have emotions, we all will have it, we all would be extremely frustrated, we all would be very emotionally affected, it affects our families, it really affects every principle of our practice when you get a claim delivered to you in a letter. Something else that I wanted to bring up is that you've got to be a team player. You, as a neurosurgeon, feel very entitled often as to be the top of the food chain in medicine, however, the care of a neurosurgical patient involves many different teams, ICU, ER, physical therapy, many, many different levels. One has to be very careful to tell the family, just because you're upset about the outcome, not to blame it on other people on the team. That is one of the most important pitfalls, in my opinion, that often surgeons fall upon, is that the patient is not doing great, it's really nobody's fault, maybe a little bit of neurosurgeon could have done better, but the neurosurgeon emotionally, again, overreacts, blames other members of the team, and potentially even excites the family in a form that you should go after that doctor, not knowing that, most likely, if any of the team members are listed in the claim, the neurosurgeon will be automatically listed in there, so, in fact, you're shooting yourself in the foot. Is that a correct statement, Rich?

- That's very well stated, Aaron, yes, and the concept of agency is an important legal concept that you, as a neurosurgeon,, have people working under you and you're responsible for them, whether you're employed by them or responsible for their activities in the OR or the ICU, and it's important not to just say, "Well, it wasn't my fault, it was their fault", like you said, that doesn't fly because that could come back to bite you, particularly if the agency law is applied, and with the food chain such as it is, the other attorney on the other side will say, "Well, it may be their fault, but it's your responsibility", so never, ever say it's other people's fault. What you need to do is recognize, when people are asking you questions, you don't have to say, "But it's so and so", what you have to do is say, "I didn't do that, it's not my fault", and if they say, "Well, who did?", "I don't know, I mean, you have to look at the record". You don't want to come out and say anything that's not asked. You are being asked questions about what you did and what went on in your operating room, and you can easily say, "I don't know what went on, I was doing my thing", do not blame other people, that'll come back to bite you.

- I agree. Last question. I'm seeing, let's say you or me is seeing a patient a year after they have surgery. You discover that potentially the surgeon did something that was not 100% within standard practice. The surgeon necessarily doesn't know much about it, they're simple people, and you feel like things could have been managed differently but, again, certain things are on the gray zone, you have to be very careful of this herd mentality and the fact that your opinion is the only opinion. But you feel like there is a role, in fact, you feel like this thing could be potentially a negligence. Patient doesn't know, how would you manage that case?

- Well, you certainly don't want to blame the primary surgeon, the prior treating surgeon for anything. You can say, "I don't know what happened at that time, but here we are now and I can deal with your issues right now". You don't want to lay the groundwork and foundation for the patient or the family to hear anything from you that, even if it's nuanced, that you are thinking that that primary treating neurosurgeon did something that was below the standard of care, that is something you should never do. Do not blame your colleagues, because remember, that could happen to you, because we all see each other's patients, you never want to blame a prior treating surgeon for an outcome, you want to just deal with what you're faced with at the time. If the patient is looking for an opinion as to whether the prior doctor breached the standard of care or caused the damages, that role that you are taking on as subsequent treating neurosurgeon does not include throwing one of your colleagues under the bus. Be careful not to think that you're better than the prior treating surgeon, you're gonna fix the problem, and that the only reason the patient is there is because the prior treating neurosurgeon screwed up, don't fall into that trap.

- Well said. Something we don't learn much in neurosurgery, unfortunately, is something we really, as neurosurgeons, have to do a lot better, a lot better, and I say that that's civility, we've got to be civil to our colleagues. You've got two principles, I think, take care of the patient as if it's your own family member, and be civil to your colleagues. Even if you do both, you're gonna get sued, but that's the reality, that doesn't say much about you, as long as we have done our responsibility to treat every patient like our own, and to be very civil to our colleagues. I think the idea of neurosurgeons treating each other well is unfortunately much less happening then even one can think of, we all have a lot to learn in that, I think that's a critical component of our practice. With that in mind, I want to thank you again, Rich, for an extremely valuable lecture for all of us, and look forward to having you with us again.

- Thank you very much, Aaron, have a great day.

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