Legal Proceedings in Pain Medicine: The Plaintiff's Attorney

FEBRUARY 07, 2010
Bradley Schmidt
William Tiano, Esq. prepares physicians for dealing with a lawsuit by giving them insights into the processes by which he prepares cases for victims of malpractice.

A malpractice case is not about the medicine. Though the plaintiff's lawyer does look at the medicine, it’s essentially static; the standard of care is most likely not going to change. The case becomes fact driven after it’s filed.

Your overall goal is to stop a case before a patient gets their lawyer, but of course, in the event that a suit is brought, doctors and/or hospitals most often settle cases ahead of time. The plaintiff is not going to turn down a settlement if they get something respectable.

When you open any file, you can find mistakes or deviations from the standard of care. However, for a plaintiff to prevail in a case, everything from standard of care and deviation to causation and big damages must be demonstrable.

In fact, we as plaintiffs are now starting to get away from talking about standard of care and focus more on patient safety rules and violations of those rules that effect both the plaintiff and the community. Looking at it from that perspective, the jury sees themselves not just awarding money to the patient, but also making the community safer.

Other things to consider
Informed consent – Independent of malpractice insurance, physicians should always established informed consent. This lowers a patient’s expectations of a successful result by communicating all risks at the outset.

Abandonment – Especially when dealing with pain patients, the plaintiffs will have other issues, so in the event that separation from a patient occurs, ensure that you are not leaving them in a condition that may cause injury. It is important that you document the separation, more specifically through communication with the referring physician.

Breach of warranty – Though less common, you may be involved in a breach of warranty case as part of drug or device litigation. Ordinarily the manufacturer would be the defendant, but sometimes doctors can be get swept into these cases. It could also be simply that the patient received an elective procedures, didn’t get a good result and wants their money back.

Case review
Before filing suit against a physician, Tiano goes through a multi-step process to determine whether the case is worth bringing before the court. He starts with a phone consultation, then from there does an in-person interview, followed by a review of the plaintiff’s medical records, and then a comparison of the record of care to standards of care found in reputable textbooks, medical literature, and the guidelines of credentialing organizations.

It’s a laborious process and the existence of a Certificate of Merit can stop a case in its tracks. Some plaintiffs take a shotgun approach; they’ll file a case and see what happens. A Certificate of Merit forces a plaintiff to obtain a patient’s medical records, then solicit a medical opinion that the doctor indeed violated the standard of care.

Tiano showed a letter that he received from a family whose case he eventually took on. It was from a family whose mother died during an operation, but who did not receive any sort of closure from the doctor, who instead sent out a nurse out to inform the patient’s relatives of the death.

This reinforces for Tiano that a doctor’s relationship with patients and nurses are key. A bad working relationship with your nurses will make them less likely to be good defenders of your work habits. As for patients, being honest about what happened up front is likely to mitigate the emotions of a negative outcome. Even if you can’t explain what happened, presenting a few plausible scenarios will provide more closure than simply leaving it at “We don’t know what happened.”

Hiring a skilled attorney
As there is a world of difference between the skill levels doctors, the same differences exist between defense and plaintiff’s attorneys. A doctor should recognize this difference from the outset and go with a top quality attorney.

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