Doctors and Litigation: The L Word

In this episode, we discuss the need for emotional, psychological, and practical preparation for your deposition. We hear from experts such as defense attorney Ryan Deady (of Barton Gilman, LLP) as well as Dr. Ilene Brenner, author of 'How to Survive a Medical Malpractice Lawsuit.' As always, you'll hear from physicians about their experiences as well. (Note: this is not concrete legal advice -- you need your lawyer for that. This is meant as a general guide to the process and what you might expect, but just like in medicine, every legal case is unique.) More about Dr. Pensa: doctorsandlitigation.com PRIOR TO DEPOSITION: In addition to obtaining books and discussing with your attorney, you may find these points helpful. This is not comprehensive, but it's a start. 1) Study your chart well, and any other documents provided to you by your attorney.  2) Discuss whether to do any research about the medicine in question with your attorney -- there are pros and cons to this. 3) Know the weak spots in your case and your charting, and how you will articulate your thoughts about them 4) Practice answering difficult questions in a direct and succinct manner, avoiding providing extraneous information. 5) Discuss with your attorney how to handle questions about co-defendants. In general, avoid finger-pointing. 6) Know your 'arrows' and when to fire them (i.e., if you have a 'slam dunk' in your defense)--this is the exception to the 'don't explain too much' strategy. Your attorney will help you identify these points and how to get them into your testimony. 7) Plan for the day itself: make sure you're not on call or post-overnight, know what sharp, professional outfit you will be wearing, know where to be and when -- and plan something fun and relaxing that evening to decompress after it's done.  DURING DEPOSITION: 1) Pay attention to your attorney during the process -- they are with you for a reason. 2) Take your time answering questions; pause before speaking. 3) Do not answer any question until the question is complete. Do not interrupt or speak to fill in an awkward pause. 4) If a question has multiple parts or is confusing, ask the questioning attorney to break it down or rephrase it. Do not answer questions unless you know exactly what the question is. If the question seems out of 'left field' avoid over-explaining why it seems to be so. If you cannot answer the question as it's asked, say so and ask them to rephrase it. 5) Be aware of verbal traps such as double negatives, hypotheticals, overly vague questions or generalizations, or questions posed after a long series of statements or data. 6) If you don't remember or don't know, just say you don't remember or you don't know. Don't guess, and don't say anything you only 'think' you remember. Stick to what you're sure of. 7) Do not agree to calling any text, journal or article "authoritative". It's not. 8) You should look at hard copies of the chart or labs when asked direct questions about them -- but then stop flipping through the chart and pay attention to the next question. Do not direct their attention to any other parts of the chart or try to educate them. 9) Take a break whenever you need one. Refresh, recharge, and speak with your attorney in private. It's a long day. 10) When it ends, get far away from the building and into a safe space before you talk to your attorney about what went on in there. You never know who's listening, and anything they observe is fair game, even if it's not in the transcript.

In part one of this look at medical experts in malpractice litigation, we hear the story of Dr. M, a physician embroiled in a dramatic legal battle after the death of a patient, and his efforts to bring the medical expert in his case to justice. We speak more with Dr. Louise Andrew, MD JD, about the necessity and ethics of medical expert testimony, and hear the voices of physicians who have been defendants, plaintiffs, and experts themselves. And we examine the psychological impact that unethical, exaggerated, or misleading expert testimony has on defendant physicians, including the story of a physician who died by suicide after being accused of witness tampering.  More about Dr. Pensa can be found at www.doctorsandlitigation.com. 

In Part Two of 'Experts and Testiliars' we continue to explore the world of unethical medical expert witnesses and their impact on defendants and the litigation system. You'll hear a presentation of Dr. Pensa's own malpractice case, as well as verbatim expert witness testimony from her second trial (acted out brilliantly by Dr. Anand Swaminathan as the plaintiff's expert). We also discuss what physicians can do to help attorneys identify and disempower 'testiliars' during litigation, what 'standard of care' actually means, and what recourse physicians can take after their case is completed if they feel they have been wronged by an unethical expert.  Louise Andrew MD JD, Greg Henry MD, and Jeff Segal MD JD add their expertise.  More about Dr. Pensa can be found at doctorsandlitigation.com.

"Every member of the family is involved in a lawsuit."  -Dr Greg Henry Litigation often has a spillover effect on spouses/partners and families, whether or not the defendant physician acknowledges it. In this episode, I interview Dr. Claire Nicogossian, PsyD, a psychologist and clinical instructor in the Department of Psychiatry and Human Behavior at Brown University (www.MomsWellBeing.com) We discuss common struggles that couples and families face during litigation, how to stay connected and communicative, and how to speak with children about litigation. Dr. Nicogossian describes some of the Gottman Institute's longitudinal research on couples, including the 'Four Horsemen of the Apocalypse' in relationships that predict divorce/relationship failure (Criticism, Contempt, Stonewalling, and Defensiveness). She offers some practical advice, reassurance, and insight. Drs. Paccione, Andrew, and Henry, introduced in previous episodes, continue to offer their added insights. More about Dr. Pensa can be found at doctorsandlitigation.com. 

In this episode, we're on the road to trial -- and talking about settlement opportunities that may come up along the way. Who makes the decisions about going to trial vs offering/accepting a settlement? What factors go into those decisions? What's a consent to settle agreement -- and what's the hammer clause that comes with it? If you're definitely headed to trial, how do you prepare -- practically and psychologically? And what can happen if there's a verdict against you and a judgment that exceeds your policy limits? We'll be hearing from two defense attorneys, Dr. William Sullivan (a practicing physician and attorney, who has been a defendant himself) as well as Douglas Williams, Esq, a medical malpractice defense attorney in Baton Rouge, LA, with over 30 years of experience. We'll also hear the story of one physician's case as it progresses from medical encounter all the way to trial.  More about Dr. Pensa and her work can be found at doctorsandlitigation.com

Many listeners have sent in questions about litigation in this new era of COVID-19. They are infuriated after seeing advertisements from plaintiff's attorney firms already soliciting COVID-19 cases, while physicians and other front line health care providers risk our lives and the health of our families in an unprecedented crisis --when litigation should be the last thing we have to worry about.  Physicians now wonder how protected will they be if their usual practice is disrupted, and there are delays in diagnosis or treatment. Or what if we send a patient with suspected COVID-19 home when they are stable, but they later worsen or die due to the unpredictability of this horrible virus? What if we are forced to ration ventilators or other scarce resources? Or if we are asked to practice outside our usual scope -- if an OB-Gyn is now working on the medicine floors, or a general internist is now working in the ICU, and there is an adverse event in that setting? In this episode, Dr Pensa speaks with two malpractice defense attorneys about some general principles, and gets some reassurance.  Some states are adopting emergency measures that provide practitioners with additional protection, changing the standard for civil cases to 'gross negligence or willful misconduct'. But this does not mean the provider has blanket immunity from being sued at all. Lawsuits might still be filed that will need to be defended, even with this new standard (though likely fewer cases will be brought forth, because they will be much harder for plaintiffs to prevail). Because lawsuits can still be filed, and there are large costs associated with defending them from the start, it is imperative that you are properly insured for however your practice changes in this pandemic. We discuss considerations for retirees and volunteers, physicians who are changing the manner in which they see patients, and the importance of documenting circumstances in general. More about Dr. Pensa: doctorsandlitigation.com

In this special episode, Dr. Pensa has a conversation with attorney T. Marc Calvert about the criminal trial of RaDonda Vaught, a Vanderbilt nurse who was found guilty of negligent homicide due to a medication error. Attorney Calvert has specialized in medical malpractice defense for over thirty years, and brings a nuanced perspective to a case which has rocked the medical world since the verdict in March 2022. Some of the questions we discuss: Will we see more criminalization of adverse events and medical error after this trial? Will malpractice insurance cover the costs of a criminal defense? What is the institutions's role in this error, and why are they not bearing more responsibility? What might happen to safety culture and the self-disclosure of error in the wake of this verdict? What lessons should we take away from this terrible and tragic event?

Although you might expect life to go back to 'normal' as soon as the litigation process is complete, it often doesn't work that way. Lingering distress, if left unaddressed, can lead to behaviors like over-documenting or over-testing, avoidance of certain procedures or case types, PTSD symptoms, disillusionment, burnout, and career abandonment. In part one of 'Life After Litigation', Dr. Gita Pensa speaks with Tracy Sanson MD, Stacia Dearmin MD, and Marge Paccione, PhD, about their insights. 

Dr. Pensa tells the story of her own life after litigation in an interview with Dr. Mel Herbert. This is the last episode of Season One.  But follow along -- a new season is in the works!  We'll talk about topics at the intersection of litigation, coaching, risk, and medicine -- and how to stay human through all of it.         

In this first episode of Season 2, Dr. Pensa talks with attorney Saira Pasha, an EMR audit trail expert. What else besides the words in your chart does your electronic medical record track? Are 'secure messages' discoverable? (Spoiler: yes, they can be!) How can an audit trail help your case -- or hurt it? How does an audit trail expert 'read between the lines' of who's looking at what entries in the record, and when, and for how long? Take home points:  The EMR creates a trail that tracks not only your substantive words on the chart, but evidence of all the people who were in a given chart, at what time, looking at what, for how many seconds or minutes, what they did next in the chart, whether a template or smart phrase was deployed. It tracks and times views, edits, additions, deletions, changes, and any printing or searches. These are not part of the initial requested 'medical record,' but can be obtained through the request of an EMR audit trail.  The timing of changes to the record can imply that charting was slanted in a way to be defensive or misleading (or at least, a plaintiff’s attorney is going to try to do that, even if your intention was well-meaning.) Attorneys may infer the importance of a part of the record by seeing how many people were in a chart at a given time, and what they were all looking at, for how long. This information can act like a big red arrow pointing at a specific medication order or radiology result, for example, even if there is no explicit mention of it in anyone's notes.  Secure messages, FYI's, Best Practice Advisories, and other prompts are all discoverable (with a little sleuthing) as part of an EMR audit within a few years of their appearance in the chart.  If you cosign notes using a template that suggests you did a substantive review of another clinician's care (such as an APP or midwife), be mindful of the fact that the EMR tracks how long you spent in that note, or reviewing that patient's chart or imaging.  Dr. Pensa references this 2021 case in which efforts to alter EMR records were exposed.  More about Dr. Pensa and how to contact her can be found at doctorsandlitigation.com.    

This month, we're exploring the topic of 'help-resistance' in physicians. Why do we acknowledge the need to maintain and optimize the health of our bodies, but scoff at doing the same for our minds or mental well-being? Why do support programs flounder from lack of participation? Why is the notion of even 'self-help' so foreign and...icky? In this 'listicast', Dr. Pensa explores the top ten(ish) reasons for help-resistance in physicians. This has practical implications as to why physicians often do not access support programs, and why they may resist external or even self-help instruction.  These concepts are each briefly explored, with particular focus on the physician experience (though, of course, other clinicians and high achieving professionals may have similar experiences.) Ten Reasons Behind 'Help-Resistance' in the Physician 1) Internal core beliefs and identity of the physician (and traits including exceptionalism and perfectionism) 2) External collective beliefs and medical culture  3) Inability to recognize when help is indicated (or avoidance coping) 4) Lack of awareness of various modalities of 'help' (what does 'help' even mean?) 5) Family of origin (or culture of origin) taboos; expectations of the family high achiever 6) Absent help infrastructure (or a hush-hush help infrastructure) 7) Terminal uniqueness 8) Fear (of discovery, judgment, licensure/discipline threats)* 9) Friction 10) Change resistance and inflexible thinking (or dichotomous thinking)   *To learn more about Dr. Lorna Breen, the Dr. Lorna Breen Heroes Foundation, and their work addressing the origins of this fear, go to https://drlornabreen.org/ More about Dr. Pensa: https://doctorsandlitigation.com/about-gita-pensa Disclaimer: Dr. Pensa is not a therapist or psychiatrist, and this discussion is not meant as treatment for any specific mental health disorder. This list is based on Dr. Pensa's personal and professional experience, and her coaching work with other physicians in the realm of litigation stress and burnout. 

Medical Boards (or state Departments of Licensure and Discipline) are charged with keeping the public safe from unskilled, impaired, or unscrupulous doctors (or other licensed clinicians, each of which has their own board). While this is an important and necessary role, it is also not uncommon for well-meaning or "innocent" doctors to become the subject of investigations due to complaints from patients, other doctors (including competitors), or from the Board itself. Malpractice litigation or adverse event reporting may also trigger Board investigations as well. This process is usually opaque, and clinicians have a poor understanding of how their Board works, who is on it, how those people are appointed, who they answer to, what happens when complaints are investigated, the possible ramifications of board decisions, and how to best prepare themselves in the case of a complaint. A naive physician can unwittingly worsen their situation, and an attorney is usually recommended to help in navigating the process. Depending on the complaint, your malpractice policy may help defray the cost of this. Important points to note: processes for Boards differ from state to state. Typically anyone can lodge a complaint against a physician with the Board, for nearly any reason, and every complaint needs to be addressed in some way. These complaints can be anonymous in some states, and can range from serious to trivial. There is generally no statute of limitations for these complaints. Consider this podcast an invitation to learn more details about your state's medical board and their processes.  Board investigations and evaluations have been linked to physician suicide, and Dr. Pensa cites a study from 2014 in which nearly 5% of physicians referred to the Tennessee medical board for fitness-for-duty evaluations either seriously attempted or completed suicide. She also mentions a John Oliver 'Last Week Tonight' episode about state medical boards that paints a bleak picture of state medical boards' ability to root out dangerous doctors. The job of the medical board is indeed a difficult one, and Dr. Pensa makes the case for more transparency, accountability, and feedback mechanisms given their power and the wide-reaching impact of their decisions. Changes would need to be made at a legislative level, as the Board is typically a governmental/political organization. Dr. Gita Pensa gives an introduction to Medical Board investigations and complaints in this episode with Guillermo Beades, Esq. Mr. Beades teaches and publishes regularly in an effort to educate physicians and other clinicians about healthcare law.  You can find an article of his about this topic here in Medical Economics.  Guillermo J. Beades, Esq., is a Partner in Frier Levitt’s Healthcare Litigation Department and Co-Chairs the Firm’s Insurance Defense Group. He represents healthcare professionals in a broad range of administrative, civil and criminal healthcare matters. Mr. Beades has extensive litigation experience before state licensing authorities and Medical Boards (e.g., NJ BME, OPMC), federal healthcare agencies (e.g., OIG, CMS, DEA) and state healthcare agencies (e.g., NJ Medicaid Fraud Division, NY OMIG). He represents practices and healthcare professionals in matters concerning credentialing and denial of privileges, administrative discipline, Medicare audits, hospital fair hearings, post-payment demands and pre-payment audits.

There is a wealth of research to support a positive effect of mindfulness on the mental health and overall well being of physicians and other clinicians. This is well documented in spheres like burnout, job satisfaction, and overall well being (sample references below). Today on the podcast we introduce mindfulness as a cognitive tool that can be useful in litigation preparation as well. Today's guest, Douglas Morgan, is a seasoned medical malpractice defense attorney who incorporates the teaching of mindfulness into his work with clinician defendants.  Resources mentioned: Apps: JKZ, Plum Village, Headspace, Ten Percent Happier and Insight Timer (Dr. Pensa and Attorney Morgan have no financial ties) Mindfulness Based Stress Reduction and the work of Jon Kabat-Zinn Teachings of Thich Nhat Hanh References: JAMA Internal Medicine. (2019). Effect of a Mindfulness-Based Intervention on Burnout Among Physicians: A Randomized Clinical Trial.  The Lancet. (2020). Mindfulness in Health Care Workers: Benefits Beyond Burnout.  Journal of Occupational Health Psychology. (2017). Mindfulness-Based Stress Reduction for Medical Students and Physicians: A Systematic Review.  Annals of Internal Medicine. (2014). Mindfulness-Based Stress Reduction for Health Care Providers: A Systematic Review. 

The phrase "nuclear verdict" strikes fear into the heart of any defendant - and today we're going to tackle it head on. We welcome Dusty Otwell, JD, medical malpractice defense attorney and Chief Risk Officer of UCACS, to the podcast to discuss “nuclear," "runaway jury," or aberration verdicts. These are jury awards to the plaintiff, given at trial, that well exceed predictions. They tend to make headlines, create fear among doctors and other providers, and lead other parties to dream of giant jackpots. In this episode we discuss: Societal trends that may be fostering the increase in aberration verdicts How we can mitigate our fear around the possibility of an aberration verdict What happens after an aberration verdict: post-trial negotiations, and real-sizing the risk to your personal assets Why defendants should feel empowered to speak up, request preparation, and ask for 'financial risk estimates' The ‘reptile theory’ deployed at trial by plaintiff’s attorneys, and how tapping into the general anger in society fuels their persuasion Why and how defense teams need to evolve to combat these tactics  Now, more than ever, preparation of the defendant should be paramount and start EARLY in the case. More about host Gita Pensa, MD, can be found at https://doctorsandlitigation.com/ Dusty Otwell is vice president for claims and risk management at US Acute Care Solutions. He also serves as Chief Operating Officer and Corporate Secretary for Clinician Assurance Risk Retention Group, the self-insurance carrier for USACS. Previously, he was associate general counsel and director of risk management for Emergency Service Partners, a founding partner of USACS; a senior risk management consultant for ProAssurance Corporation, staff attorney for Maynard, Cooper & Gale, P.C., and staff counsel for Medical Reimbursements of America, LLC.  

"A World of Hurt: How Medical Malpractice Fails Everyone" is a new documentary produced by Emmy-nominated physician-filmmaker Dr. Mark Brady and two medical students, Alex Homer and Viknesh Kasthuri. After a year of private screenings and film festivals, this powerful piece was recently picked up by PBS after winning multiple awards. It is now free to watch online (links below).  In under 27 minutes, this short documentary tells three stories: a plaintiff whose sister dies after a medical error; a physician whose life is decimated by a malpractice allegation; and a couple whose baby dies in the hospital, but seeks a non-traditional route for closure.  Dr. Pensa, who appears in the film, turns the tables and interviews the filmmakers in today's podcast. They discuss what it was like making the film during COVID, the difficulty of getting subjects to agree to filming, and how they hope this piece can be an agent for conversation and change.  Please watch the film and share widely. It is short, but powerful. Watch now: PBS: https://watch.ripbs.org/video/a-world-of-hurt-how-medical-malpractice-fails-everyone-uklpuo/ YouTube: https://www.youtube.com/watch?v=09IVcL6pACU You can find Dr. Pensa at doctorsandlitigation.com