Legal Proceedings in Pain Medicine: The Defense Attorney

FEBRUARY 07, 2010
Bradley Schmidt
From the defense’s perspective, the case is fully about the medicine. It’s about the medical records, charts, interaction, and patient communication. A good chart that is well documented, makes it a lot easier to defend. With that said, no case is perfect. There’s always some flaw.

Doctors should be aware of the stresses of litigation. Doctors and healthcare providers over the years have communicated just how devastated they are over being questioned about the medical care that they deliver. Many times they will begin second guessing themselves, and in some cases, people pull out of practice afterwards. Ensure that you have some sort of support system in place to help you overcome the situation and realize that litigation is just a reality of practicing healthcare today.

Give your lawyers as much information as possible. Many times a case is won or lost at deposition and the more information a lawyer has, the more ammunition they have at their disposal to help win the case. (Payouts reported to national database, plaintiffs try to get case reviewed by objective person so that they can see whether the case can be defended. Negative review leads to early settlement. Trying to win the case before trial, initial meeting with doctor, deposition, many times case is won at deposition. Help lawyers as much as possible, arms with ammunition to win case.)

Proving a case is difficult. The general equation goes: Standard of Care Deviation Causation = Malpractice. You may have a bad event, but the real question is whether the plaintiff can prove what caused it. Without proof of inaction or action causing damages, the case fails.

Get informed consent
Take the time to develop clear and comprehensive informed consent documentation, and never leave it unsigned or unwitnessed (think opioid contracts). It is not only important that everything is well documented but that there is good communication (What do you expect from the patient? What are the consequences of noncompliance?). Memorialize everything that influenced your decision-making to protect you. You must go into greater detail than writing, “Right shoulder pain. Prescription for X drug.” Do your best at the time, knowing that you can’t cover everything.

The trial and medical literature
When put on the stand, the plaintiff’s lawyer will establish the standard of care related to medical literature by asking the question, “Are you familiar with X book?” A doctor will indicate familiarity at some point and then the plaintiff’s lawyer will use that against them later by citing obscure statistics and passages which might indicate that they violated the standard of care.

You need a proper, educated defense to combat this. Physicians don’t practice medicine by reading a cookbook. The best answer in this situation is to say that the text “is one many. I can’t say that I rely on it regularly. I rely on my training, education, and experience. I have not committed to memory every single line of text in this book. That’s not how I practice.”

Location, location, location
Should you get sued, during your initial contact with an attorney, ask questions about the case’s jurisdiction - What can I expect about settlement, verdicts, etc.? It should be part of your mental preparation for the case.

Avoid becoming a defendant
You can prevent many issues by doing a thorough analysis of the patient through a history, physical exam, and determining whether they have other care providers. Communicate with those care providers to obtain past medical records so that you are aware of any issues in their treatment history that could become a legal issue down the road.

Further, take time to review all of your entries into the patient’s treatment record. A defense is only as good as the record, so take time to review it and make sure it’s accurate, which will do a great deal for your defense in the long run.
Choosing the attorney
When you find out about the suit, save anything and everything for discussions with the lawyer. Anything produced outside of those conversations, even a call to an expert, becomes discoverable.

Finally, know your attorney. Try to find someone who specializes in medical malpractice. They will be best prepared to defend your case.

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