Mock Trials Familiarize EPs with Reality of Med/Mal Litigation
Training can possibly prevent future suit
During residency and medical school, Dainius A. Drukteinis, MD, JD, FACEP, attended a number of lectures on medical malpractice. "As I was already a lawyer, it was clear that the concepts could not truly be understood without engaging in the medical malpractice process itself," he says.
Drukteinis is associate medical director of the ED at Tampa (FL) General Hospital and assistant professor of emergency medicine at University of South Florida. During law school, he got involved in extensive mock trial competitions.
"While not a perfect replica, I thought that this was a great opportunity to demonstrate some of these concepts in the way they truly unfold at trial," says Drukteinis. He developed a medical malpractice mock trial competition used to teach residents basic skills for testifying in legal proceedings.
"Being prepared means anticipating problems, documenting appropriately, and communicating your position effectively at the time of litigation," says Drukteinis.
Ten residents in the hospital’s emergency medicine program volunteered as witnesses in the mock malpractice trial. Residents testified several times, and were given feedback to prepare them for subsequent rounds of testimony.
The process improved residents’ communication skills, and expanded their knowledge of documentation pitfalls.1
"For the most part, we knew that the residents would improve their communication skills after they went through the process," says Drukteinis. "They were critiqued, both face-to-face with the jury,’ and on written score sheets."
A more surprising finding was the residents’ lack of improvement in demonstrating empathy for the "patient." "I suspect that because the physicians were so focused on sounding smart and defending themselves, they could not tap into their sensitive’ side — often the very reason why many physicians went into medicine in the first place," Drukteinis.
Drukteinis believes the participants will feel more confident in defending themselves in a lawsuit, since they’ve seen the pitfalls of poor communication.
"Perhaps they will even avoid exposure in the first place because of the lessons they have learned regarding documentation and the link between the chart and the perception of medical care by non-physicians," he says.
Many Misconceptions
One of the misconceptions EPs have about medical malpractice litigation is that the physician is a victim without any control over the outcome, says Drukteinis. "Good documentation and effective communication at the time of trial can certainly improve your chances of success, and improve your chances of demonstrating that you did the best that you could," he says.
EPs should know the basic terminology of medical malpractice litigation, such as "negligence," "causation," "subpoena," and "deposition," advises Drukteinis. "We need to learn that medical malpractice exposure should be an expectation for all EPs — not just for some small group of physicians that don’t practice appropriately," he says.
There are two types of EPs — "those who have been sued and those who haven’t been sued yet," according to Douglas Segan, MD, JD, FACEP, a Woodmere, NY-based medical-legal consultant.
Before EPs are named in their first lawsuit, says Segan, "they believe that if they practice good medicine and have good communication skills with the patient and family, the system works and they won’t be sued."
When that same EP becomes a defendant and reads the summons and complaint, "they can’t believe how they are described," says Segan.
"It’s very unsettling when you see a list of accusations in the complaint and your hands are tied," Segan explains. "For the duration of the case, your attorney is your mouthpiece. You have to speak through him or her."
Many EPs have little or no idea how the expert witness process works, he explains. They typically blame patients or families for having unrealistic expectations or ambulance-chasing plaintiff attorneys.
"However, when you go through the process, you realize that the malpractice problem is not with the patients or the plaintiff bar, but with some of our EP colleagues," says Segan.
EPs often don’t realize that expert witnesses are paid a great deal of money and that their integrity is sometimes compromised. "All of these cases require another physician to say with a straight face that the care in this case breached the standard of care," says Segan. "And the standard of care that some of our colleagues hold us to is totally unrealistic."
Claims Involve Unusual Presentations
Segan says that while some claims against EPs are clearly malpractice and others have no evidence of malpractice at all, most fall somewhere in the middle. "In the majority of cases, reasonable minds could disagree," he says. "If the claim is reviewed by 10 EPs, five might say the standard of care was met and five might say it wasn’t."
Segan says EPs should be more aware of legal risks involving unusual presentations of unusual diseases. He has reviewed several such claims against EPs, such as cases alleging failure to diagnose carotid dissection in a young, healthy patient presenting only with mild weakness in an arm.
"These are difficult diagnoses to make, except with the benefit of hindsight," says Segan. "It won’t be difficult when the patient comes back with the tragic outcome of a large CVA [cerebrovascular accident], to hire an expert to say that the standard of care required a CT angiogram."
Segan says EPs can protect themselves legally by being upfront with patients if the diagnosis is unclear. "Humility is our best friend," he says. An EP might say, for example, "Things look fine at this point, but I’m not sure what is going on. Sometimes a serious disease process may be subtle in the beginning, so come back if things change."
It is always better for the EP to express diagnostic uncertainty than to come up with a diagnosis that’s not clinically sound, advises Segan. "For example, don’t make a diagnosis of constipation or stomach flu in a patient with abdominal pain and a negative workup when the patient has no symptoms of these disorders," says Segan.
In the ED, signs and symptoms might be too early and too subtle to diagnose. Hours later, the patient might have clear signs of a myocardial infarction or CVA. "There is no fatal disease process that doesn’t have a beginning, and the onset is frequently subtle and nonspecific," says Segan.
EPs likely feel better when they can label a patient with a diagnosis. "But efforts to squeeze the patient into a diagnostic box that doesn’t really fit are a mistake," says Segan. "Once you put a diagnosis out there, the thinking process often ends — both for us and for the patient."
- Drukteinis DA, O’Keefe K, Sanson T. Preparing emergency physicians for malpractice litigation: A joint emergency medicine residency-law school mock trial competition. J Emerg Med 2014;46(1):95-103.
Sources
For more information, contact:
- Dainius A. Drukteinis, MD, JD, FACEP, Associate Medical Director, Tampa General Hospital Emergency Department/Assistant Professor of Emergency Medicine, University of South Florida. Phone: (917) 572-1051. E-mail: [email protected].
- Douglas Segan, MD, JD, FACEP, Woodmere, NY. E-mail: [email protected].
