How It Works
Thomas C Liske MD FCCP
Have you ever wondered what drives liability suits against physicians and hospitals? Does it mean that your physician is incompetent? Malpractice is a word that strikes terror into the hearts of many physicians. The appearance of a process server or police officer in his/her waiting room or at his/her front door is quite threatening and can be embarrassing. It also requires that physicians carry very expensive insurance to protect themselves. I have been sued several times but never lost a case and was forced to settle one. I was an expert witness in one case and resolved to never do that again. I have not been named in a suit for over fifteen years. Allow me to describe the process.
The process usually begins when a family member contacts an attorney as they believe harm has been done by the health care system to a loved one due to ignorance, incompetence, or negligence. This is usually directed at the health care institution, the physicians, and the staff or any combination thereof. The attorney will request all medical records which he farms out to a physician who is paid handsomely to review for possible failure to meet the standard of care. Should he find an issue, the physician will send an affidavit describing his reasoning. The attorney will then decide whether to pursue the case. One lawyer told me he reviews his possible cases for level of documentation knowing that the case will be easier to argue if the documentation is poor. He will also look for evidence of tampering with the record (entries added after chart closed, pages ripped out, erasures with corrections etc.). He then files a suit with the court. All parties who made entries to the record are usually named initially figuring that those not directly involved will be dropped later. Then depositions are scheduled where each potential defendant, witnesses in fact, and expert witnesses are questioned with all attorneys involved in attendance. After this process is completed, the attorneys decide from their client’s perspective whether it is worth going to court, whether each individual should be dropped from the case, or whether to settle out of court. A few attorneys have been accused of filing unworthy suits for smaller amounts of money knowing it costs the malpractice insurance company more to fight the case than to settle for a lesser amount.
Things to be aware of:
• The physician’s attorney works for the insurance company although representing the physician. I will demonstrate this in one of my cases
• Physician witnesses may be offered dismissal from the case if agreeing to be a free expert witness
• Some malpractice attorneys conduct hours long depositions repeating questions or asking irrelevant questions. The purpose is to wear the physician down in the hope that he will say something incriminating about himself or a colleague
• Be aware of the credentials of expert witnesses. Some doctors are “hired guns”. If brought in from out of state with minimal credentials, it may indicate that no credible local expert is willing to testify. Generally an expert with university affiliation and a strong CV is reliable.
• The physician’s local newspaper is not helpful. When defendants are named, even those who ultimately have no culpability, their names will appear on the front page. When they are exonerated, the story is ignored or there is a small blip on page 38
• If the physician loses or settles, this is entered into the National Practitioners Data Bank which can be accessed by health care institutions, state licensing agencies and other health care entities when the physician is applying for privileges. However, the physician can submit a rebuttal.
In follow up articles, I will point out the weaknesses in the system by reporting on my own experiences
How It Works