Physicians Practice - April 2008 - (Page 24)

THE LAW WHAT MAKES A GOOD CASE? For trial lawyers, establishing the facts is the ﬁrst important step. What exactly happened? When did it happen? Who was involved? Where does it leave the patient? This is very speciﬁc evidence, but it must be in place to support the claim, says Kimmel, either “in the records or strikingly omitted from the records.” Kenneth Levine, a 20-year veteran plaintiff’s attorney based in Boston, says, “lawyer’s opinions don’t matter as much as it might seem.” So, the documentation in a patient’s chart — or lack thereof — is of supreme interest to a trial attorney. So is the damage, which must be life altering and severe. A scar that turned out a half-inch longer IN SUMMARY Trial lawyers know that most patients sue their physicians because of a lack of communication from the physicians, and hence, the patient perceives malpractice. Here’s what lawyers look for as they evaluate whether to take a malpractice case: than expected? Un-uh. Loss of brain function? Bingo. Also, such damage must have actually happened. “We often get calls where people say, ‘I could’ve died!’ Well, you didn’t,” says Kimmel. No case. Most lawyers are not medical experts, but they know how to secure one to review a case and offer an opinion. This opinion must solidly support the damage, backed up by the expert’s immutable credentials in that exact area — a slippery slope for the trial attorney. Finally, a good trial attorney will consider the plaintiff’s likeability, as in, is he? “Some people just aren’t,” says Levine, and a plaintiff with an off-putting demeanor can quickly poison a case. Levine also looks for certain other deal-breaking signs that divulge a person’s inner gold digger. “If I meet with somebody and in that ﬁrst meeting the person asks how much the case is worth,” he says, “I generally don’t take that case.” A PICKY PROFESSION • Is the plaintiff’s lifestyle signiﬁcantly compromised physically, mentally, and/or economically? or worse, lacking? • Is the chart documentation unclear, • Is the case backed up by an immutably qualiﬁed expert’s testimony? • Is the plaintiff likeable? Here’s what trial lawyers suggest physicians do to protect themselves against a lawsuit: Believe it or not, reputable trial lawyers who specialize in litigating malpractice cases do not relish taking every case to court. Why? Because “we’re likely to lose,” says Kimmel. He estimates that 80 percent of medical malpractice cases that go to trial rule for the defendant — much worse odds than most other personal injury cases. The U.S. Department of Justice numbers differ only slightly. According to government data from 2003 (the latest available), medical malpractice is the second-toughest type of tort case for plaintiffs to win at trial, with defendant physicians prevailing in 63.3 percent of verdicts. The Justice Department’s data reﬂect trials in federal court; most malpractice claims are heard in state court, and states vary widely in terms of their sympathies toward plaintiffs. Still, the majority of cases don’t even get that far: According to a 2006 Harvard School of Public Health report, 61 percent of medical malpractice suits are settled out of the courtroom. And it takes a sizeable chunk of change for lawyers to prepare for such cases — $50,000 would be a “normal” outlay, says Kimmel. Meanwhile, with many states passing laws capping damages for pain and suffering (often at $250,000), and the amount of any judgment that attorneys can take home, the potential payout for plaintiff’s lawyers is greatly reduced, without any reduction in their risk. “It’s nowhere near what the public thinks,” says Kimmel. “In New York there’s no huge payout [for attorneys]. Statutorily, it’s less than a third [of the award]. It goes down to 10 percent … on a sliding scale once you collect over $1 million.” • Be nice to your patients and develop good relationships with them. WHEN CASES GO TO TRIAL, HOW OFTEN DO PLAINTIFFS WIN? TYPE OF TORT CASE Federal employers’ liability Motor vehicles Marine Other personal injury Airplane Assault/libel/slander Medical malpractice Product liability NUMBER OF JURY AND BENCH TRIALS 68 311 128 419 16 34 147 194 PERCENT FOUND FOR PLAINTIFF 69.1% 56.9% 53.9% 46.3% 43.8% 38.2% 36.7% 33.5% • Connect with referring specialists. • Know your patients’ medical histories. • Document well and never alter any record without indicating it is an addendum. • Stay within your area of expertise. Many physicians get themselves into trouble by adding ancillary services for which they’re not qualiﬁed. • Disclose any medical errors, and apologize — properly. 24 | PHYSICIANS PRACTICE | APRIL 2008 Source: Federal Judicial Center, Integrated Data Base (Civil), fiscal years, 2002-03. WWW.PHYSICIANSPRACTICE.COM http://WWW.PHYSICIANSPRACTICE.COM

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Physicians Practice - April 2008 Contents The Bigger Picture: Medicare Decision Time Letters Physicians Practice Pearls: Outsource Your Pain Noteworthy Cover Story: Trial Lawyers Tell All Management: When It’s Time to Change Ask the Experts Technology: Do You Know Where Your Data Is? The Tech Doctor: Are Your Discarded PCs Really Clean? Billing & Collections: Playing Hardball The Administrator's Desk: Recruiting for Patient Satisfaction Start It Up: Finance - Mastering the Numbers Game Coding The Great Practice Makeover: Taking Care of Business Associates Classifieds Advertiser Index

Physicians Practice - April 2008

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