LITIGATION: CONTROL OR BE CONTROLLED A Proactive Approach Presented By: Gregory R. Travis The Travis Law Firm, P.C Galleria Financial Center 5075 Westheimer Houston, Texas TH AAO Annual Session Monday, May 3, 2004

THE EFFECTS OF LITIGATION

How Litigation Affects You Physically Physically Mentally Mentally Emotionally Emotionally

How Litigation Affects Your Business Generally Generally Employees Employees Reputation Reputation

How to Approach Litigation Mentally to Overcome or Minimize These Effects Take Control of Yourself Take Control of Yourself Take Control of Your Office Take Control of Your Office Take Control of the Situation Take Control of the Situation

REASONS FOR LAWSUITS & LESSONS TO LEARN

Reasons for Lawsuits: Refund Case/Fee Return Refund Case/Fee Return Bedside Manner: Attitude Bedside Manner: Attitude Miscommunications Miscommunications Informed Consent Informed Consent Expectations Expectations Required Perfection Required Perfection Crazy Client: Screen, Refer & Avoid Crazy Client: Screen, Refer & Avoid True Mistake: E&O True Mistake: E&O

PREVENTION OF LITIGATION

Prevention of Litigation: The Practice Itself The Practice Itself Records – Accurate and Legible Records – Accurate and Legible Informed Consent -Doctor/Patient Relationship -Doctor Did Not Inform Patient of Risk Associated with Procedure -Undisclosed Risk Occurred -Undisclosed Risk Proximately Caused by Doctor Informed Consent -Doctor/Patient Relationship -Doctor Did Not Inform Patient of Risk Associated with Procedure -Undisclosed Risk Occurred -Undisclosed Risk Proximately Caused by Doctor

Prevention of Litigation: Informed Patient/Family Informed Patient/Family Personality & Attitude Personality & Attitude Problem Patients Problem Patients Criticizing Other Orthodontists Criticizing Other Orthodontists Doctor’s Duties -Cooperate -Assist Doctor’s Duties -Cooperate -Assist

Litigation: A Brief Overview of the Process and What to Expect Along the Way

Initial Complaint: Informal: Patient Complaint Informal: Patient Complaint Formal: Demand Letter Formal: Demand Letter What To Do and When To Do It What To Do and When To Do It

The Petition: Filing Filing Service Service

DISCOVERY

Different Forms of Discovery: Formal Formal Informal Informal

Formal Discovery Request for Production Request for Production Request for Admissions Request for Admissions Interrogatories Interrogatories Request for Disclosures (Texas) Request for Disclosures (Texas) Deposition/Sworn Statement Deposition/Sworn Statement

Informal Discovery Everything Else Under the Sun – Outside of Formal Discovery Everything Else Under the Sun – Outside of Formal Discovery Contacting Subsequent Treaters Contacting Subsequent Treaters Contacting Third Parties Contacting Third Parties Obtaining Past Testimony From Attorney Network Obtaining Past Testimony From Attorney Network Investigation Investigation

Discoverable vs. Non-Discoverable

Evidence vs. Non-Evidence

Surprises vs. Non-Surprises

MOST COMMON DEFENSES

Defenses: No Duty No Duty No Breach No Breach No Causation No Causation No Damages No Damages Statute of Limitations Statute of Limitations Proportionate Responsibility Proportionate Responsibility Damage Caps? Damage Caps?

Mediation What’s the Purpose? What’s the Purpose? Description/Composition Description/Composition Use and Abuse Use and Abuse What to Expect from It What to Expect from It

Settlement Consent Issue Consent Issue On Whose Terms On Whose Terms What Terms What Terms

TRIAL

Trial: Basics and Essentials Defined Defined Rule: Those Willing and Able To Fight, Seldom Do Rule: Those Willing and Able To Fight, Seldom Do Corollary: Those Unprepared to Fight, Will Corollary: Those Unprepared to Fight, Will

Trial: Preparation Preparation What to Expect What to Expect Appearance Appearance Attitude Attitude Length Length

APPEAL

Appeal: Reasons for Appeal Reasons for Appeal Who May File and Why Who May File and Why What is Your Involvement? What is Your Involvement?

Plaintiff’s and Plaintiff’s Counsel’s Perspective as to You and The Litigation

Plaintiff: Feels Slighted, Hurt, Possibly Betrayed Feels Slighted, Hurt, Possibly Betrayed Totally Emotional Totally Emotional Familiar with Stories of Large Jury Verdicts Familiar with Stories of Large Jury Verdicts Unfamiliar with the Litigation Process and All it Entails Unfamiliar with the Litigation Process and All it Entails Tires of the Process Easily Tires of the Process Easily Best Time to Deal with Plaintiff Best Time to Deal with Plaintiff

Plaintiff’s Counsel: Type 1: Emotional Type 1: Emotional Type 2: Business Type 2: Business

TYPE 1 Hates and Despises All Doctors (Probably a Wanna Be) Hates and Despises All Doctors (Probably a Wanna Be) Views You Impersonally Views You Impersonally Believes Client Blindly-Unquestionably Believes Client Blindly-Unquestionably Doing God’s Work Doing God’s Work Does not Prepare Plaintiff Does not Prepare Plaintiff Punk – Difficult to Deal With, Easy to Beat Punk – Difficult to Deal With, Easy to Beat

TYPE 2 Likes Most Doctors (Especially His Experts) Likes Most Doctors (Especially His Experts) Knows that Everyone is Not Perfect Knows that Everyone is Not Perfect Profit Driven Profit Driven Rational, Thoughtful, Reasonable Rational, Thoughtful, Reasonable Prepares Client Sufficiently Prepares Client Sufficiently Dangerous Dangerous

Gregory R. Travis The Travis Law Firm, P.C Galleria Financial Center 5075 Westheimer Houston, Texas (713)