Welcome to Litigation
It is a virtual certainty that every colon and rectal surgeon will be sued at least once in his or her career. The litigation process that ensues will exact a toll on you personally and professionally. To reduce your anxiety and frustration you must becom
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Key Concepts • In litigation, preparation is the key to a successful outcome. • Preparation should begin as soon as you become aware of an adverse outcome likely to lead to litigation. • Don’t conduct an independent investigation. • Never appear at a deposition without consulting an attorney. • Meet with your attorney early. • Communicate with your attorney regularly. • Know what you can expect of your attorney, and when. • Know what is expected of you, and when. • Do your homework; and make yourself available. The unfortunate reality for today’s physician is that he or she will almost certainly be sued for medical malpractice in his or her career. According to data published in the New England Journal of Medicine in 2011, general surgeons (the publication does not include a cohort for colon and rectal surgeons) face a 15.3 % annual probability of facing a medical malpractice claim. Along with other “high risk” specialties, 80 % of general surgeons are projected to face a claim by the age of 45 years, and, by age 65, fully 99 % of those physicians in “high-risk” specialties such as general surgery are projected to face a claim [1]. The pertinent question for today’s surgeon is not “What should I do if I get sued?”; rather, it is now, “What should I do when I get sued?” If there is comfort to be taken in this data, it is that while physicians, depending on specialty, face a 5–20% probability of facing a malpractice claim in a given year, the probability of any such claim leading to an indemnity payment is substantially lower. Portions of this chapter include material from Judicial Council of California Civil Jury Instructions (CACI), Nos. 200, 208, 219, 221, 501, 505, and 506. Permission to reprint CACI instructions in this publication has been expressly granted by the Judicial Council of California.
This chapter is designed to guide the physician-defendant toward achieving the best result the facts of the case allow. Best result is not measured only in the sense of winning or losing the case. As importantly, best result implies minimizing the human toll the process exacts on the physiciandefendant, by reducing anxiety and frustration [2]. Anxiety is reduced by education and managing expectations. This chapter is organized to provide a general outline of each of the stages of the litigation process. It will describe each stage of the process, and define the role of the attorney and of the physician-defendant at each stage. Frustration is reduced with preparation and being proactive in your defense. As a physician facing a malpractice claim, you have the right to expect your attorney to be well prepared at each stage of the litigation. As the physiciandefendant you, too, have a significant role in the preparation of your own defense. To be prepared, you must know what to expect during the course of the litigation. You must understand the litigation process. You must understand what you have the right to expect from your attorney; and finally, you must understand what your attorney has the right to expect of you. In an
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