Risk issues: Then and now

December 5, 2018

by T. Marc Calvert, JD

In the last four decades, there have been many changes in the intersecting worlds of medicine and law. To compare and contrast the risks to physicians at the close of the Carter administration versus today is an exercise in nostalgia, an acknowledgement of change, and an identification of patterns.

 

Rules of the game
A brief look at history and context is illuminating. In 1977, the Texas legislature announced a "crisis" and passed the Medical Liability and Insurance Improvement Act (MLIIA), which was codified as Article 4590i of the Texas Revised Civil Statutes. This was the law for many years, and it brought forward important protections, including a cap on wrongful death damages.

In later years, monumental judicial decisions also affected health care litigation. The biggest? Daubert v. Merrell Dow Pharmaceuticals was the seminal case. Decided by the U.S. Supreme Court in 1993, the ruling attacked "junk science" and set forth the scrutiny required for expert testimony. Importantly, Texas adopted the Daubert analysis in 1995 in the case E.I. du Pont de Nemours & Co. v. Robinson.

The impact of Daubert cannot be overstated. The case ushered in a new era in which expert and scientific testimony would be routinely challenged, allowing physicians to benefit from the raised bar of evidence.

The momentum from Daubert set the stage for additional protection in litigation against physicians. In 2003, tort reform passed and physicians have enjoyed an extended period of fewer lawsuits and increased protections. This includes the establishment of a cap of $250,000 on non-economic damages. Chapter 74 replaced 4590i, and now significant details are required to be included in the plaintiffs’ expert reports initially filed in a lawsuit against doctors.  

 

More lawsuits
With that legal path reviewed, let’s take a look back at the main risk issues that confronted the physicians of yesteryear. Firstly, there were many more lawsuits. It was much easier to sue physicians in the 80s than it is today. With little tort reform, plaintiff’s lawyers were largely unchecked, and cases were brought by the wheel barrow full. I remember many excellent surgeons who were sued once a year on average. 

   

More creative and dangerous attacks
I remember sitting at seminars in the 1980s and there was discussion on how to recover triple damages and attorney fees in medical cases by using the Deceptive Trade Practices Act. I recall a 60 Minutes expose on the Texas Supreme Court and their shenanigans to help plaintiff’s attorneys. “Is justice for sale in Texas?” Mike Wallace asked at the beginning of the segment. It is just as chilling to watch now as it was 30 years ago. Back then, physicians were often chum in shark-infested waters, and the courts were of little help.

 

Most cases not capped
There were no caps on non-death cases, so plaintiff’s lawyers — who often expected to lose at trial — felt free to try for a homerun even on small cases. If they could get the jury angry at the physician, the damages could be high, even for cases with minimal injury. 

In the long run, plaintiff’s attorneys could risk going to trial many times because the inevitable big payoff from one big win could cover several losses. This led to overpayments on minor cases in order to protect the physician from a runaway jury verdict.
 

Junk science
Before Daubert, junk science was rampant in the courtroom. Experts would simply say whatever they wanted. The default response from trial court judges — who were often former plaintiff’s lawyers — was to “let the jury decide.” This Russian roulette approach was dangerous for physicians. Big verdicts were random and terrifying.  There was a sense of unpredictability. 

I can remember deposing plaintiffs’ experts and reporting to my client things like “the expert from Florida says that the cancer was detectable and treatable earlier if you had done the right tests.  He does not provide any literature or studies, but he says he has seen this before and that is his experience.” In an emotion-based case, such as a cancer case, it did not take very much for juries to believe the theories from the plaintiffs’ experts. Daubert changed that.


Mass tort litigation
In the 80s and 90s, mass litigation became common. This included breast implant litigation, Fen/Phen, pedicle screw, and a host of others. Plaintiff’s attorney’s typical approach was to sue the product defendant and the physician. Physicians were often dismissed from the case once the product defendant was pinned down on not blaming the physician for the outcome.  But they endured a bumpy and stressful ride. Though lawsuits over medications and medical devices continue today, the practice of also routinely suing the physician has diminished.

What new or different risks confront physicians today? 


In general, more serious cases
Most who defend health care professionals agree that cases today are fewer in number, but are, on average, more substantive. Typically, experts have given their opinions to plaintiff’s lawyers before the case is filed, rather than years into litigation. Caps on damages compel plaintiffs’ attorney to be more selective in the cases they pursue. The expense of bringing a medical liability lawsuit acts as another way to weed out less substantive cases, so the ones that are brought may have more substance than in years past.   


Technology
Technological advances are seen as both a blessing and a curse.

Electronic health records (EHR) have both helped and hindered. The pulldowns, auto populated fields, check boxes, and inserted commentary may well advance patient care in some respects.  But, they can be significant fodder for those critiquing your care.

The “signs of infection” phrase from the EHR, automatically implanted if certain boxes are checked, can make a sepsis case more difficult to defend. The EKG that pops in “STEMI” on a tracing that the physician does not think is a STEMI poses a challenge if the patient dies from a STEMI. A physician who carries forward copy and paste sections from prior entries will be questioned about how a person can have the exact same blood pressure four visits in a row.

Smart phones — what are you texting to your colleagues? That information is potentially discoverable in a lawsuit, and it can be obtained even if you delete the texts. You may be recorded by patients or their family members on a frequent basis, even if you ask them not to.  Both audio and video, whether hidden or out in the open, pose new challenges to physicians.

More plaintiffs’ lawyers are seeking the audit trails on medical records. These digital footprints capture every detail about entries or changes in the medical records. If you delete a symptom in the medical record, the audit trail will verify that it happened and when it happened. And if you made that change after receiving notice of the lawsuit, you will be questioned about it.

A new risk is negative online reviews and comments about you and your practice. Patients can post damaging commentary that is seen by all and is not easy to remove. Be careful how you respond. Do not compound things by publishing comments of your own that could violate privacy laws.

 

Physicians practicing today are far more likely to encounter complaints from the Texas Medical Board (TMB). With the advent of tort reform and the resultant drop in the number of lawsuits against physicians, the TMB filled the perceived gap. That is, the TMB became more active in investigating and disciplining physicians.

Some plaintiffs’ attorneys nudge potential clients to file a TMB complaint after telling them they do not have a case with enough damages to justify a lawsuit. The TMB does not have to screen cases based on money, so ALL complaints are given attention. Many of the complaints investigated concern fairly minor issues. This is likely to continue.

 

A positive change occurred in the early 1990s, when mediation became an option for alternative dispute resolution. The mediation statute for Texas promoted the principle that litigation should be attempted to be resolved short of trial. I remember the days of settlement on the courthouse steps. I even settled a few cases with jury panels waiting in the hall before jury selection began.

Mediation did away with this. Now, almost all civil cases go through mediation before being eligible for trial. For physicians, mediation is a good step. It is a day of informed consent; of learning about the risks and benefits of settlement versus trial; and of hearing the evidence and the mediator’s perspective. Mediation has been a game changer for informing doctors and as a better forum for resolving cases that need to be resolved before trial. 


Constant and chronic issues
Whether it is 2018 or 1984, there are some common areas of vulnerability that span the decades.

Inadequate records such as a failure to note pertinent information, a skimpy note, contradictions within the same record . . . these are seen in both paper charts and in today’s EHR. The TMB is particularly attune to poorly kept records. And in lawsuits, they can be hard to overcome. 

Communication counts. Regardless of technological advances, failure to inform a consultant about a key piece of information can be devastating to your defense. Having an elaborate phone system is of no real benefit when the patient is not timely told of biopsy results.  Informed consent, postoperative instructions, and handling a late-night call from a patient are still issues at the center of many claims against physicians. 

Bedside manner matters. Forty years later, people are still reluctant to sue physicians that they like. Patients are sometimes unreasonable in their expectations. But if they sense that you care and that you are giving them time and effort, they will often give you the benefit of the doubt.

Great staff can make you and bad staff can break you. This holds true after all these years.

At the midnight hour. When bad things happen, there are often common denominators. It is frequently after hours — usually around midnight — that you must decide if it is really necessary to go in to see a patient. Or to make or return the call. Other common problem times are weekends, shift changes, and transitions to a new physician. The ball seems more easily dropped during these times, and lawsuits and complaints spike.


Conclusion
Yes, the more things change, the more things stay the same. Paperwork and regulations are up and reimbursements are down. But from a legal perspective, your risks are less than what they were in the 1980s. Thanks to tort reform, damage caps, and to judicial checks and balances on expert testimony, you have more protections than ever.

 

About the author
T. Marc Calvert, JD founded Calvert & Associates in 1996. Since 1987, a primary focus of Mr. Calvert’s practice has been health care liability defense. He has also represented health care professionals before the various licensing boards. As a certified mediator, Mr. Calvert has also handled numerous disputed matters for a wide variety of cases including family law.

 

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