1. Anatomy of a Lawsuit James Fitko, MD, MPH,FACOEM

2. Civil Procedure Federal Rules of Civil Procedure State rules

3. The Complaint Relatively easy to file Statute of limitations Caption Alleged facts –Numbered paragraphs Prayer for relief Pleadings

4. Process serving Various methods You can run, but you can’t hide Contact your insurer immediately –Must answer in 20 days Don’t discuss any specifics with others

5. Motions to dismiss Lack of jurisdiction –Subject matter –The person Improper venue

6. The Answer Limited time to avoid a default judgment Responses to allegations in the complaint Affirmative defenses

7. Necessary elements for a claim Duty –Physician-patient relationship –Standard of care Breach Injury Proximate cause (Informed consent)

8. Defendant Suits Counterclaims Cross-Claims Third-Party Actions

9. Motions To dismiss Directed verdict Continuance Summary judgment In limine

10. Discovery Scope Interrogatories Requests for Production of Documents Subpoenas duces tecum Depositions Independent Medical Exams (IMEs)

11. Discovery - Scope Broad based –Personal questions Privilege –Attorney-client –Physician-patient –Husband-wife Attorney work product

12. Discovery - Interrogatories Written questions Under oath

13. Requests for production of documents Parties to the suit 30 day time limit

14. Subpoenas duces tecum Require the provision of documents Not parties to the suit Protective orders

15. Electronic Health Record Technical problems with the software More details than a paper record Signatures Boilerplate and checkboxes

16. IMEs Independent medical exams

17. Depositions Purpose Preparation Location The transcript Advice for the deponent Videotape Abuse

18. Depositions-Purpose The deponent is under oath Gather information Determine facts Evaluate you as a witness Lock you down Intimidation

19. Depositions-Preparation Very important Settlement –>90% settle without trial Meet with counsel “A reasonable degree of medical certainty” Study all case material –Medical record –Expert reports Review the literature

20. Depositions-Time and Location Don’t box yourself in on time constraints Not in your office

21. Depositions-Transcript Don’t waive right to read and sign Changes in form or substance –Must be explained

22. Depositions-Advice Listen to the question carefully Take your time Don’t lie You don’t know You don’t remember Don't guess or assume Take breaks

23. Depositions-Advice Don’t get angry Don’t joke Don’t volunteer any information “Off the record” Don’t form “instant opinions” Don’t say that a text is “authoritative” “Hypothetical” situations

24. Depositions-Advice Inventive assumption –I cannot answer the question as asked –I don’t agree with the assumption Don’t use the other side’s words Never say never (or always) –Don’t use absolutes

25. Depositions-Advice Repetitive questioning Don’t elaborate Don’t volunteer information Take all the time you need to review documents

26. Depositions-Videotape Dress appropriately Look at the camera Body language Don’t get angry or combative Don’t appear nervous or evasive Don’t eat, drink, chew, etc.

27. The Trial Bench trial/Jury trial Finder of fact Level of sophistication Opening statements –Theories of the case and previews of evidence Burden of proof –Preponderance of evidence –51% –A reasonable degree of medical certainty

28. The Trial Evidence Witnesses Plaintiff goes first Closing arguments Jury deliberates Verdict

29. Evidence Federal Rules of Evidence Relevant evidence

30. Experts Qualified by –Knowledge –Skill –Experience –Training –Education Reports Express opinions –Compare to lay witnesses

31. Daubert Federal Rule of Evidence 702 –Expert by knowledge, skill, experience, training, or education Daubert v. Merrell Dow Pharmaceuticals –The theory or technique can be tested –Peer review –Rate of error and standards –General acceptance –Did the theory exist before the litigation? Motion in limine

32. Remedies The judgment Damages –General—pain & suffering –Special—lost wages, medical bills –Punitive Court orders

33. The Appeal Decide questions of law, not fact An appeal is not a retrial New trial Reverse verdict

34. Implications for Medical Personnel Record keeping and documentation How will experts view your actions? Red face test Prepare thoroughly for depositions

35. “Defensive” Medicine Limit injury if a mistake is made Consultations Recommend further treatment and follow-up Notify the patient or family Answer questions Notify your malpractice insurer Write down everything you remember Apologize?

36. The Adverse Event Whose “fault”? Was a mistake made? How serious is the result? Could/should something have been done differently?

37. Possible Motivations Justice Money Revenge Effect a Change Prevent Future Recurrence

38. Dealing with a Lawsuit Don’t take it personally It’s business It’s a chess game 89% of ObGyns have been sued 70% result in no judgment against the physician Physicians win 80% of cases that go to trial

39. Thank You