1. Medical Malpractice Lawsuits 201 Melanie S. Taylor Brian D. Trulock Attorneys at Law Hall, Booth, Smith & Slover www.hbss.net

2. Why We’re Here Risk Management Risk Management All critical players in successfully defending against lawsuits. i.e. gathering discovery, discovery meetings, deposition preparation All critical players in successfully defending against lawsuits. i.e. gathering discovery, discovery meetings, deposition preparation Big picture: What is required for a lawsuit to be filed, what happens during the course of the suit, and what are different ways to resolve them? Big picture: What is required for a lawsuit to be filed, what happens during the course of the suit, and what are different ways to resolve them?

3. Medical professionals must comply with: Federal Law Federal Law State Law State Law Regulations (i.e.- Nurses Practice Act) Regulations (i.e.- Nurses Practice Act) Hospital Policies and Procedures Hospital Policies and Procedures Standing Orders Standing Orders Standard of Care Standard of Care

4. Why Patients Sue? To find out “what really happened” To find out “what really happened” Lack of information, understanding Lack of information, understanding Blame Blame Perception: patients and their families notice behavior; “What is hospital covering up?” Perception: patients and their families notice behavior; “What is hospital covering up?” Need coordinated response from healthcare team Need coordinated response from healthcare team We can’t tell a patient that someone else will talk to them unless we are absolutely sure We can’t tell a patient that someone else will talk to them unless we are absolutely sure “I’m sorry that this happened” doesn’t admit liability “I’m sorry that this happened” doesn’t admit liability Value of showing compassion Value of showing compassion We cannot promise specific results or make excuses We cannot promise specific results or make excuses We cannot theorize as to how something happened We cannot theorize as to how something happened

5. Duty +Breach in standard of care +Proximate causation +Damages__________________Negligence

6. NEGLIGENCE v MALPRACTICE Negligence= breach of duty Negligence= breach of duty Malpractice- did act require exercise of professional judgment? Malpractice- did act require exercise of professional judgment? i.e.- dropping patient= negligence i.e.- dropping patient= negligence Not properly restraining patient = professional judgment Not properly restraining patient = professional judgment

7. First Element: Duty Plaintiff must prove that there was a doctor-patient relationship. Plaintiff must prove that there was a doctor-patient relationship. Doctor-patient privity is essential because it establishes the legal duty to conform to a standard of conduct- take care of patients Doctor-patient privity is essential because it establishes the legal duty to conform to a standard of conduct- take care of patients

8. Second Element: Breach of STANDARD OF CARE Standard of care Standard of care What a reasonable person should do under the same or similar circumstances Development of a recognized accepted risk or known complication is not negligence. Development of a recognized accepted risk or known complication is not negligence. There is no requirement of a perfect result. There is no requirement of a perfect result. Cannot blame the nurses or doctor solely because of a bad result, no matter how bad the result. Cannot blame the nurses or doctor solely because of a bad result, no matter how bad the result. Only experts can say what Standard of Care is in given situation Only experts can say what Standard of Care is in given situation

9. What is competent expert testimony? - Licensed - Licensed - Active practice in profession or specialty for at least 3 of the last 5 years - Active practice in profession or specialty for at least 3 of the last 5 years - Have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given. - Have actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.

10. Third Element: Proximate Causation Plaintiff must prove that she suffered injuries as a result of the defendant’s negligent act or omission and injuries would not otherwise have occurred. Proof to reasonable degree of medical certainty = more likely than not

11. Fourth Element: Damages If duty, breach in the standard of care, and proximate cause are proven, the defendant will be liable for the resulting damages If duty, breach in the standard of care, and proximate cause are proven, the defendant will be liable for the resulting damages

12. Anatomy of a Lawsuit Complaint, Summons Complaint, Summons Answer within 30 days Answer within 30 days Discovery (possibly a Scheduling Order) Discovery (possibly a Scheduling Order) Interrogatories/ Requests for Documents/Admissions Interrogatories/ Requests for Documents/Admissions Obtain medical records, interviews, meetings Obtain medical records, interviews, meetings Obtain expert witness reviews Obtain expert witness reviews Deposition of the parties, witnesses (can subpoena) Deposition of the parties, witnesses (can subpoena) Deposition of experts Deposition of experts IME (independent medical examination) IME (independent medical examination) Motion for Summary Judgment Motion for Summary Judgment ADR: Arbitration, Mediation, Negotiation ADR: Arbitration, Mediation, Negotiation Trial Trial

13. Depositions May be videotaped May be videotaped Who can be present? Who can be present? Exercise control Exercise control Objections Objections Don’t guess Don’t guess Personal Questions Personal Questions Deponents must rely on the record and policies Deponents must rely on the record and policies

14. Time Restraints Statute of Limitations = 2 yrs, except: Statute of Limitations = 2 yrs, except: “retained foreign objects”= 1 yr from discovery “retained foreign objects”= 1 yr from discovery If child less than five years old, then tolled two years or until age 7) If child less than five years old, then tolled two years or until age 7) Misdiagnosis Case – 2 years from date of injury Misdiagnosis Case – 2 years from date of injury Wrongful Death Case - 2 years from date of injury OR date of death Wrongful Death Case - 2 years from date of injury OR date of death

15. Statute of Repose O.C.G.A. § 9-3-71 (b) O.C.G.A. § 9-3-71 (b) “In no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” “In no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.”

16. Monetary Caps Supposedly applies to any cause of action accruing after effective date of Tort Reform (2/16/05); Supposedly applies to any cause of action accruing after effective date of Tort Reform (2/16/05); Some judges have declared unconstitutional (as recently as 2/2009), so we cannot rely on caps Some judges have declared unconstitutional (as recently as 2/2009), so we cannot rely on caps Economic damages (e.g. life care plan or lost wages claims are not capped). Economic damages (e.g. life care plan or lost wages claims are not capped). Limits the award of non-economic damages to a total of $1,050,000 with $350,000 limitation on licensed physicians and other health providers and $350,000 per facility up to $700,000 from all medical facilities Limits the award of non-economic damages to a total of $1,050,000 with $350,000 limitation on licensed physicians and other health providers and $350,000 per facility up to $700,000 from all medical facilities

17. Joint and Several Liability The 2005 legislation effectively eliminates joint and several liability in Georgia. The 2005 legislation effectively eliminates joint and several liability in Georgia. Requires apportionment of fault among defendants and eliminates any right of contribution. Requires apportionment of fault among defendants and eliminates any right of contribution.

18. Before Claim Have a crisis management plan Have a crisis management plan Assess the situation the way outsiders will perceive it. Contain the likely or perceived “damage.” Comply with regulatory and ethical requirements, e.g. corporate [social responsibility]. Enhanced risk management: obvious risks will be identified, and mitigated (where possible). Protected and often enhanced reputation; reduced risk of post event litigation.

19. Claim made If a medical professional is contacted about a claim, they are not to discuss it If a medical professional is contacted about a claim, they are not to discuss it They refer the potential claimant to Risk Management They refer the potential claimant to Risk Management Investigation begins Investigation begins

20. After a Claim is Made Interviews Interviews At Emory, attorneys represent hospital, doctors, nurses, technicians, etc. At Emory, attorneys represent hospital, doctors, nurses, technicians, etc. Communications are privileged Communications are privileged Broader than later testimony Broader than later testimony Written Discovery Written Discovery Complete and truthful Complete and truthful Bound by position taken Bound by position taken Accurate Accurate Depositions Depositions Trial Trial