Preparing the Physician for Deposition and Trial
Objectives Upon completion of this seminar, attendees should be able to: 1. List ways in which the physician can act as their own advocate and take an active role in their own defense; 2. Understand the critical importance of depositions and trial to the successful resolution of any medical malpractice case, and why thorough preparation is essential; and 3. Outline the different types of questions the physician can expect to be asked during deposition and trial and how to best respond to those questions.
Percent of Physicians with a Claim 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 1 10 20 30 37 Years Insured All Specialties Family Medicine Pediatrics Emergency Medicine Radiology OB/GYN
New Claims per 100 Physicians (Claim = lawsuit or demand for money) 7.2 6.6 5.5 5.8 5.1 2008 2009 2010 2011 2012
Lawsuit Outcomes 90% 80% 70% 60% 50% 40% 81% 74% 30% 20% 15% 20% 10% 0% 4% 6% 2003-2007 2008-2012 Tried Settled Resolved With No Payment
Litigation Steps (Chronology) Lawsuit Written Discovery Depositions Expert disclosures and depositions Trial
Deposition Discovery o o o o Discover knowledge, recollection, position Pin down Evaluate witness Set traps
How to Prepare for Deposition? Strategy and theme Semantics Items to review Research Mock depositions Witness prep consultant Plaintiff attorney s style Appearance and demeanor
Case Study
Medical Literature Impeachment Significance of questions re: literature Video example
Authoritative Text Dr. Connor, Surgeon
Video Recap
Do Not Educate the Plaintiff s Attorney Fair, concise and direct response to question Use normal medical lexicon How much is too much?
Talking With Others Attorney/client privilege Other privileges No specifics Video example
Discussing The Case Dr. Connor, Surgeon
Video Recap
Comparative Fault Apportionment (percentage) of blame Boiler Plate Assertions Finger pointing Party vs. Non-Party Negligence of the patient
Questions Regarding Care by Others Diplomatic charting and communication Ramifications of finger pointing Role of experts Video example
Comparative Fault (Bad Version) Dr. Stuart, PCP
Video Recap
Comparative Fault (Good Version) Dr. Stuart, PCP
Video Recap
Comparative Fault (Non-Party) Dr. Yune, Cardiologist
Video Recap
Phases of Trial Voir Dire Opening Statements Plaintiff s Evidence Defendant s Evidence Closing Arguments
General to Specific Questioning Every question has a purpose Plaintiff s strategy Defense tactics and theme Video example
General to Specific Questioning (Bad Version) Dr. Stuart, PCP
Video Recap
General to Specific Questioning (Good Version) Dr. Stuart, PCP
Video Recap
Hypothetical Questions Be wary/listen carefully Don t accept the facts as true Opportunity to explain your answer Reformulate the question Video example
Hypothetical Questions Dr. Stuart, PCP
Video Recap
Burden of Proof Standard of care Deviation from standard Injury caused by deviation Damages ($$$) Preponderance of the evidence
Meeting the Burden of Proof Role of expert testimony Statutory requirements Selection process
Conclusion of the Trial Closing argument Jury instruction Jury deliberation Sample jury verdict form
IN THE CIRCUIT COURT FOR OZ COUNTY, STATE OF BILL JONES, husband and ) next of kin of KAREN JONES, ) Deceased, ) ) Plaintiff, ) ) v. ) No.19600313 ) RODNEY STUART, M.D., ) ) Defendant, ) VERDICT FORM We, the jury, present the following answers to the questions submitted by the Court:
1. Rodney Stuart, M.D.: (a) Do you find that Rodney Stuart, M.D. violated the applicable standard of care during his care of Karen Jones? Answer: (Yes or No) (If you answered No to part a, then stop your deliberations, have the foreperson sign this document, and notify the Court Officer. If you answered Yes to this question, proceed to part b.) (b) Do you find that this violation of the standard of care was a proximate cause of the death of Karen Jones? Answer: (Yes or No)
2. Jay Connor, M.D.: (a) Do you find that Jay Connor, M.D. violated the applicable standard of care during his care of Karen Jones? Answer: (Yes or No) (If you answered No to part a, skip part b. If you answered Yes to this question, proceed to part b.) (b) Do you find that this violation of the standard of care was a proximate cause of the death of Karen Jones? Answer: (Yes or No)
Preamble to Question No. 3 If you found that one or both physicians listed above were at fault i.e., you have answered Yes to both parts (a) and (b) with respect to Question 1 and 2 then proceed to Question No. 3. If you have not found any of the physicians listed above to be at fault, then stop deliberations, have your foreperson sign the verdict form, and then return to the courtroom. 3. Percentage of Fault: What percentage of fault, if any, do you assess against the following? If you have previously determined that one of the persons listed below was not at fault, then enter 0 in the line beside that name. (Your percentages must add up to equal 100%. Your number may not be greater than 100%.) Rodney Stuart, M.D. % Jay Connor, M.D. % TOTAL: 100%
4. What amount of damages do you find: Loss of Earnings Loss of Consortium Loss of Enjoyment of Life Medical Expenses Pain & Suffering Funeral and Burial Expenses Total $ Signature of Foreperson Date
Trial Results 2008-2012 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% 78% 80% 74% 67% 56% 21% 22% 22% 17% 18% 12% 13% 9% 7% 4% 2008 2009 2010 2011 2012 Plaintiff Verdicts Defense Verdicts Mistrial/Nonsuit or Settled During Trial
SVMIC Lawsuits Closed 2008-2012 85% 80% 76% 75% 76% 15% 20% 24% 25% 24% 2008 2009 2010 2011 2012 With Loss Payment Without Loss Payment
Average Settlement and Average Verdict 700,000 600,000 500,000 $528,748 $627,705 400,000 300,000 200,000 100,000 $281,982 $300,219 0 2003-2007 2008-2012 2003-2007 2008-2012 Settlement Verdict
The Physician Experience