You've Been Subpoenaed: What to Expect

Transcription

1 Session Code: TU09 Date: Tuesday, October 24 Time: 11:30 a.m. - 1:00 p.m. Total CE Credits: 1.5 Presenter(s): Kathleen Matzka, CPMSM, CPCS

2 You ve Been Subpoenaed: What to Expect Kathy Matzka, CPMSM, CPCS, LLC 1304 Scott Troy Rd Lebanon, IL (618) Objectives Discuss the discovery process when a lawsuit alleging negligent credentialing is filed Define the role of the medical services professional in answering discovery requests and providing testimony Discuss what is expected of the expert regarding review of documents, reporting opinions, providing testimony at deposition and trial Recognize the challenges and benefits of providing expert opinion 2 Introduction 3 1

3 Steps Lawsuit filed Discovery Trial Negotiation Mediation 4 LAWSUIT IS FILED 5 Lawsuit is Filed Typically called a Complaint or a Writ Clock starts running on when the case might get to trial May take years to get to trial Pre-trial procedures vary by state 6 2

4 Certificate of Merit Certificate of Merit Includes» Explanation of the applicable standard of care that should have been followed» An opinion that the defendant failed to follow the applicable standard of care (i.e., was negligent) Some states require the plaintiff s lawyer to submit along with or after compliant is filed and before any pretrial investigation May be either a written opinion of negligence from an expert who has reviewed pertinent documents or an affidavit from the lawyer affirming that the lawyer has discussed the case with a qualified expert who believes that the plaintiff has a legitimate case After CoM approved by judge, the litigation begins and the parties conduct discovery 7 The Medical Malpractice Review Panel Intended to reduce the number lawsuits by allowing the patient to receive an early opinion about whether or not the healthcare provider met the standard of care Composition varies, but will include physicians who practice in the same specialty as the accused physician Panel determines whether the defendant did or did not meet the standard of care After receipt of the opinion the patient has X number of days to file suit 8 DISCOVERY AND REVIEW OF DOCUMENTS 9 3

5 Discovery Interrogatories Written questions used to get information from the other party Party answering the interrogatories must answer them truthfully May focus on facts that neither party disputes in order to get these issues out of the way instead of wasting time with them at trial or to exchange basic information» Example: Provide name of hospital staff with responsibility for credentialing process 10 Discovery Requests for Production All versions of Hospital Governing Body and Medical Staff, bylaws, rules and regulations, and policies and procedures regarding credentialing, privileging, and peer review; in effect during the initial appointment, and last reappointment of Dr. immediately previous to [date of the incident] Credentials file(s) Meeting minutes Incident reports Communications (electronic, etc.) 11 Discovery Requests for Admissions Establish which issues are not in dispute in the case Take care of issues that both parties agree upon so that both sides can save time, money, and energy at trial arguing only over the things they disagree on Example: Admit that Dr. was a member of the medical staff on [date] 12 4

6 Deposition Oral statement of a witness under oath taken before trial Purpose» Find out what the witness knows determine all facts in advance so there are no surprises at the trial» Preserve the witness' testimony Court reporter, videoconferencing, teleconferencing, videotape 13 Tips for Deposition Follow instructions of attorney you are working with Provide honest, accurate, and direct answers Don t guess If you don t know or don t remember, say so 14 For the Expert: What to Expect Pre-deposition conference/prep Examination by other parties attorney(s)» Describe training and experience current CV» Discuss compensation» Question and answer session regarding opinions» Determine underlying support for opinion» Copies of everything considered or reviewed in formulating opinion Cross examination 15 5

7 For the Expert What is Typically Reviewed Claim Deposition testimony Interrogatories/Responses Requests for Production/Responses Privilege log 16 Peer Review Protections Vary by state and court Privilege log Bates Date Type Author(s) Recipient Description Privilege D /05/16 Joseph Long, MD Helen Discussion State peer Green, temporary review CPMSM privileges for statute Dr. Rusto D /08/16 letter Joseph Long, MD Sara Rusto, Discussion State peer MD 3/6/2015 review incident statute D /22/16 form N/A Sara Ruso, Proctorship State peer MD form review statute 17 Tip for Experts: Don t Get Bogged Down in Irrelevant Details May receive documents you don t really need to form an opinion Depositions cover multiple issues Medical records Focus on relevant information 18 6

8 Tips for Experts: Take Notes Don t write on documents use separate sheet of paper Make listing of opinions as you are reviewing materials Make notes of facts keep track of page numbers so you can reference later Keep a list of questions for client and additional documents to request 19 For the Expert: Opinions Some courts do not require a written report, opinions of the experts are stated in a document prepared by the attorney Some states require an expert's affidavit of merit before a lawsuit can be initiated 20 For the Expert: Written Report Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure requires: Complete statement of all opinions the witness will express and the basis and reasons for them The facts or data considered by the witness in forming them Any exhibits that will be used to summarize or support them The witness's qualifications, including a list of all publications authored in the previous 10 years List of all other cases in which the witness testified as an expert at trial or by deposition during the previous 4 years» Plaintiff v. defendant, jurisdiction, case #, type and date of testimony, (deposition, trial) A statement of the compensation to be paid for the study and testimony in the case» Fee schedules, invoices, etc. 21 7

9 MEDIATION/NEGOTIATION 22 Mediation/Negotiation Usually begins when discovery period ends or winds down May be discussion among attorneys or, in some cases, will go to mediation If no settlement or mediation doesn t work out, will go to trial 23 TRIAL TESTIMONY 24 8

10 What to Expect May last a week or more Direct-examination Cross-examination Re-direct/Re-cross 25 For the Expert: What to Expect Purpose: Help the jury to understand the evidence or determine a fact in issue» Qualifying the expert» Establishing a basis for opinion» Eliciting the opinion» Explaining the opinion Direct-examination Cross-examination Re-direct/Re-cross 26 FORENSIC CONSULTING VS. EXPERT WITNESS 27 9

11 Neff v. Johnson Memorial Hospital, 889 A.2d 921--CT (2006) Plaintiff did not disclose an expert witness to establish the applicable standard of care of the hospital in credentialing Plaintiff contends that he did not need an expert witness because the issue of whether the hospital was negligent in its credentialing of Hanny is one issue within the ken of the average member of the jury The plaintiff alleged that no special knowledge or expertise was needed to determine whether the hospital breached the applicable standard of care in failing to investigate the three medical malpractice cases lodged against Hanny because the inquiry requires only that the jury use its common sense Court disagreed Plaintiff was required to present expert testimony as to the standard of care in credentialing and recredentialing and that the hospital breached the applicable standard of care 28 Forensic Consultant Forensic = "related to legal matters" (Webster's dictionary) Forensic Consultant = knowledgeable person who can provide insight or specialized information to support a client s potential litigation activity Not providing formal testimony May also be employed before the fact to help assess risk exposure If a forensic consultant's findings will be entered into the legal proceedings of a dispute, then the client will "name" that consultant as an expert witness 29 Testimony by Expert Witness All 12 U.S. Circuit Courts of Appeals have made decisions on expert admissibility based on qualifications Within individual states, appellate and state supreme court decisions have rendered decisions on expert qualifications Federal Rules of Civil Procedure 30 10

12 Federal Rule 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:» the expert s scientific, technical, or other specialized knowledge will help the trier of fact (judge, jury) to understand the evidence or to determine a fact in issue» the testimony is based on sufficient facts or data» the testimony is the product of reliable principles and methods» the expert has reliably applied the principles and methods to the facts of the case Some states use Rule 702 or have their own Rules of Evidence 31 Am I Qualified? Have I published in peer-reviewed journals or written books? Do I have relevant, practical, real world experience? (How recently?) Can I establish, through certifications that I have specialized training? Can I show that I have stayed current in my field by attending or presenting at workshops or conferences, etc. on the same or similar topics? Have I served on committees or as an officer of a state or national professional association related to the field? Have I been qualified to testify on the same or similar subject matter before? 32 Tip: Don t Stray from Your Discipline Qualifications need to be relevant to the opinion being given If you don t feel the issue is within your area of expertise, say so Opposing counsel may challenge your qualifications may file a motion challenging the reliability of your expert testimony 33 11

13 CHALLENGES AND REWARDS 34 Providing Expert Opinion: Challenges and Benefits Challenges Demanding role Do I have time? Handling the stress of adversarial questioning Mastery of subject matter Objectivity Rewards New learning opportunities Contribute expertise to the legal system's pursuit of justice Benefits the public interest Good pay 35 Questions 36 12