Tuesday, January 25, 2011

The Sad Day When Orthopedic Surgeons Drank the Attorney Kool-Aid

I was horrified when I learned that the AAOS (American Board of Orthopedic Surgeons) would actually discipline courageous orthopedic surgeons who would testify for injured plaintiff patients.  

I would never ask an orthopedic surgeon to help me sue another orthopedic surgeon in a court of law.  I would seek compensation in another way.

Recently, the AAOS offered advice for the orthopedic surgeon who becomes a defendant.  Darn those injured orthopedic patients.

Feel free to read the AAOS' advise to defendant orthopedic surgeons.  It will make the average orthopedic patient feel about as welcomed in an orthopedic clinic as a chicken-hawk in a hen house.  

The AAOS purports (like state medical boards) to maintain the integrity of the medical profession and protect the public.  But if the AAOS is punishing the injured plaintiffs' expert witnesses and ignoring incompetent orthopedic surgeons, how precisely is the AAOS serving any function to the public.  

In fact, the AAOS does not protect orthopedic patients.  Quite the contrary.  The AAOS' actions harm and endanger the lives of orthopedic patients.

Perhaps the only actual AAOS function is to protect bad orthopedic surgeons.  If so, then sadly, good orthopedic surgeons are paying their dues and attending events to finance the continuing bad orthopedic practices of their colleagues. 

Speaking as an attorney, the most disturbing passage in the AAOS article is:
In the U.S. legal system, the work of lawyers is not to find the truth, but rather, to provide the best advocacy for their clients under the circumstances. The trial of facts and the determination of the truth is a jury function, if the case ever gets to trial. How effectively a jury can find the truth is a function of advocacy and trial skills; a good defendant surgeon can help optimize these variables and influence the outcome of the case.
Any attorney who takes a medical malpractice case (or any case involving liability) is ethically bound to evaluate the case and determine whether there is a legal basis to bring the case against a defendant.  It is absolutely irresponsible for the authors of this article to suggest that plaintiff attorneys for injured patients are uninterested in veracity.

The authors of the AAOS article (below) are attorneys and are advising orthopedic surgeons.   In my humble opinion, it is reprehensible that attorneys instruct orthopedic surgeons to do anything less than be completely honest in the legal process.  

There is no need to play games or be "coached" to manipulate a jury.  I cannot believe the attorneys would advise this.  I particularly cannot believe attorneys would publish the advise.  

Attorneys should advise defendant orthopedic surgeons that "Sorry Works" and accountability works.  

Attorneys associated with the AAOS should be concerned with protecting the integrity of the orthopedic medical profession and the safety of all orthopedic patients.  

There is absolutely nothing in this article that addresses the very real possibility that the defendant orthopedic surgeon may have injured the patient.  Moreover, the orthopedic surgeon may be incompetent or have a personal (drug, medical, mental) problem that interferes with the surgeons ability to practice medicine.

By its actions, the AAOS has shown itself to be dedicated to the protection of dues paying orthopedic surgeons at the expense of patient safety.

The surgeon’s role in assisting defense counsel
By B. Sonny Bal, MD, JD, MBA, and Randy R. Cowherd, JD
Odds are that you, an orthopaedic surgeon, will be served with a medical liability lawsuit at some time in your career. The legal proceedings begin when the patient files a complaint with the local court, making you the ‘defendant’ and an unwilling participant in an unfamiliar and possibly intimidating process. Shortly thereafter, your medical liability insurance carrier will identify a lawyer as your defense counsel. This article presents tips and pointers for working closely with your attorney to reach a satisfactory outcome.
Some rules are worth remembering at the outset. First, do not contact the patient or the lawyer representing the patient. The patient is now an adversarial party; any contact with opposing parties should be through your defense counsel only. Second, do not alter anything in the records that pertains to the care of the patient. Third, avoid leveling your frustrations at your defense counsel; he or she is charged with understanding the case and developing a theory of defense. This critical task will affect the outcome of the lawsuit.
Working with you 

Do not wonder whether your assigned defense counsel will be more interested in protecting you or your insurance company. The lawyer, even though paid by an insurance company, owes a duty of professional responsibility to you, the defendant surgeon. The situation is comparable to the doctor-patient relationship; surgeons work in the best interest of their patients, even though the surgeons are usually paid by an insurance company.
In some situations you may want to hire an independent counsel to represent you in addition to your assigned defense lawyer. An independent counsel can provide another source of legal advice and peace of mind and address concerns about asset protection, extent of liability exposure, business or practice interests, and other issues related to the lawsuit.
An independent counsel may also be helpful if a conflict arises with the insurance carrier about matters of coverage or settlement negotiations. Some conflicts may preclude your assigned defense counsel from offering advice either to you or your insurance carrier. These concerns can be addressed by private counsel. To help develop a theory of defense and navigate through the procedures and technicalities of a medical malpractice lawsuit, however, the attorney appointed by the insurance company will suffice.
Initial meetings
The early meetings with your defense counsel will probably focus on your educating the lawyer on the medical issues involved and doing some legal housekeeping functions, such as completing interrogatories, submitting documents, and answering a list of questions posed by the plaintiff’s lawyer. These are formal steps in the adjudicatory process and should be taken seriously.
Although paperwork is generally unappealing, successful defense of a medical malpractice claim demands the time, deliberation, and active engagement of the defendant surgeon.
The information you provide will help defense counsel understand the case and formulate questions. The exchange of information, which may seem laborious and unimportant, actually plays a significant role in the case because matters exchanged between adversarial parties can be used as evidence at trial, either for or against you.
The U.S. civil justice system is designed to encourage out-of-court dispute resolution. Through the discovery process—the gathering and exchange of factual information through interrogatories, depositions, and other mechanisms—it is hoped that the feuding parties can reach a meeting of the minds and resolve the dispute without a trial. Therefore, your answers to questions from both your counsel and the plaintiff’s attorney must be honest, complete, and forthright.
During your initial encounters with your defense counsel, you should get a feel for personalities and professional styles. You can explain your side of the story and brainstorm without reservation; information shared with counsel is confidential and not discoverable by the opposing side.
Focus on the complaint—the list of allegations contained in the actual lawsuit. Each allegation or complaint must be formally answered by the defense counsel; failure to do so on a timely basis can result in a default judgment for the plaintiff. The individual complaints must be answered with specificity and particularity; the defense counsel will help distill your side of the story to factual answers that are filed with the court.
Developing a defense

Once defense counsel has filed a formal answer to the complaint (in practice, this usually means denying all allegations), the adversarial system of dispute resolution requires that each party use discovery, depositions, literature review, and expert testimony for the following related goals:
       to learn and understand the strengths and weaknesses of the other side
       to develop a theory to support one’s own viewpoint and negate the other side’s arguments
As a defendant, you should think about the most plausible theories to refute or negate the alleged complaints. Investigate the literature and identify expert witnesses who will agree to review the record and testify in court. Don’t defer these tasks to defense counsel; although experienced lawyers can identify credible experts in the field, there is no substitute for an active and engaged defendant.
During the legal proceedings, some procedural steps may seem confusing and unsettling. For example, you may receive copies of letters updating the insurance company on the lawsuit. Insurance representatives may sit in during depositions and related activities. Defense counsel for any additional parties to the suit—such as a hospital, pharmacy, nursing home, or implant manufacturer—may attend depositions and raise objections for the record. The plaintiff patient may be present at your deposition, possibly with a family member.
Your counsel may send a letter indicating a willingness to settle the case; some jurisdictions require this procedural maneuver so you can preserve certain legal rights. Specifically, such a letter may bar the insurance company from suing you after trial to recover monetary damages in excess of the settlement offer. A settlement letter does not mean that your counsel has given up on the case; ask about any procedural steps that may concern or be unfamiliar to you.
Deposition tips

Be sure to discuss your deposition by opposing counsel with your attorney. Not all information is admissible at trial, no matter how much the plaintiff’s attorney asks. Plaintiff’s counsel may inquire about prior lawsuits, but that history cannot be brought up at trial, unless some narrow legal exception exists. For example, if the present lawsuit alleges missed compartment syndrome after anterior cruciate ligament reconstruction, and the last six lawsuits against the defendant-orthopaedist alleged the same complaint under nearly identical sets of facts, procedural rules might allow admissibility of this history at trial.
The goal is to focus on present facts and make the proceedings about the trial at hand only. But, as with anything else, exceptions exist; talk to your defense counsel to see whether an exception applies.
You should know what factual information your defense counsel has had excluded from trial by court motion or other pretrial mechanism. For example, if your hospital instituted disciplinary hearings against you, your defense counsel could argue that these proceedings could bias a jury and successfully move the court to exclude this information from trial, or the information itself may be privileged from discovery. If you volunteer that previous peer-review hearings were decided in your favor, you may inadvertently enable the plaintiff’s attorney to introduce unfavorable details of those matters to the jury.
Think twice

Remember that for every good argument there exists an equally credible counterargument. Think through the allegations from the plaintiff’s side; go through the mental gymnastics of argument versus counterargument, and use your medical knowledge to help your counsel present the strongest defense possible. This will also help you maintain a professional demeanor during an otherwise difficult and emotionally taxing process. Juries want to believe the physician, and the burden of proof is entirely upon the plaintiff.
In the U.S. legal system, the work of lawyers is not to find the truth, but rather, to provide the best advocacy for their clients under the circumstances. The trial of facts and the determination of the truth is a jury function, if the case ever gets to trial. How effectively a jury can find the truth is a function of advocacy and trial skills; a good defendant surgeon can help optimize these variables and influence the outcome of the case.
Trial preparation is arduous both for you and your counsel. You should read the testimony of all of the experts and doctors involved in the case and fully understand the nature of the theories of liability being alleged. By working as a team, you and your counsel can bring forth the arguments against those theories at trial.
Dr. Bal is associate professor of orthopaedic surgery at the University of Missouri in Columbia, Mo. He can be reached at balb@health.missouri.edu
Randy R. Cowherd practices civil litigation and appellate work with the law firm of Haden, Cowherd, & Bullock, LLC, in Springfield, Mo. He can be reached at rcowherd@hcblawfirm.com
 November 2010 Issue

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