Episode 131: Litigation, Depositions, and Preparing for Trial

Speaker 1: You're listening to Your Practice Made Perfect, support, protection and advice for practicing medical professionals. Brought to you by SVMIC.

Renee Tidwell: Welcome back to Your Practice Made Perfect. I'm Renee Tidwell and I'm going to be your host. Today we are going to revisit an obvious topic for SVMIC, malpractice lawsuits. We're going to focus on preparing yourself as a defendant, the ins and outs of depositions, and a highlight of the trial process. To walk us through this content, we have SVMIC's Meghan Clark. We know that this subject can be a stressful topic of discussion for many of our insureds, and we know that as physicians, you know medicine. As your malpractice insurance carrier, we'd like to help you better understand the anatomy of a malpractice lawsuit and keep you informed on what to expect during each step of the process. Let's hand it over to Meghan, who is going to take us through some helpful tips and lessons learned.

Meghan Clark: Well, thanks Renee. I am so excited to be here. We all know that a malpractice lawsuit is one of those looming, scary, let's just pray it never happens type of things in a physician's world, but the reality is that many, if not most physicians are going to be involved in a lawsuit over the course of their career. Because of this, it's vital that you stay informed on the general format of a lawsuit and how the life of a lawsuit will work. To kick off this episode, we will revisit an episode with two of our senior claims attorneys, J. Baugh and Katy Smith, as they break down the life cycle of a malpractice lawsuit on our podcast in August 2019. Let's revisit this informative conversation highlighting each stage of the litigation process.

Brian: Let's talk a little bit about phase one of actual litigation. Katy, can you expand upon that for us a little more as we start this litigation phase?

Katy Smith: Sure. What happens after a lawsuit is filed by the plaintiff's lawyer is it has to be served on the defendants. The lawsuit itself is called a complaint. You will also be served not only with the complaint but with the summons. An important point to kind of mention here, if you're a physician who practices in an office and you have office staff, make sure your office staff knows how to handle the receipt of certified mail type documents. If you have a certain office staff member who's designated as your representative who can sign for these types of documents, then certainly that person should go ahead and do so. You should just make sure your office staff knows not to automatically sign for something just because they've received it. Instead, the office member could direct the process server or take the envelope to the physician, him or herself, so they can handle it appropriately. You need to report the service of the lawsuit to us so that your lawyer can very quickly and within the time that's allowed by the court rules, respond to the complaint on your behalf. It's a 20 or 30 day period of filing the responsive pleading, so you need to make sure to contact us as soon as you receive the suit papers.

J. Baugh: Now, there is one thing that I wanted to mention about the complaint itself, and that is they're not always written in a factually accurate manner. Yeah. So you need to remember that what's happening here is you're seeing the plaintiff's version of what happened. You're reading the way the plaintiff remembered what was said and what was done, and you will always have an opportunity to respond to that and your lawyer will file with the court a pleading that's called an answer and you will be able to admit or deny anything and everything that's mentioned in the complaint. So don't get too worked up when you read a complaint because it's going to be their spin on what happened with the case.

Brian: Well, thank you guys for laying out that first important part of litigation. So from my understanding, once we get past this, then it moves into this next phase of litigation, often referred to I guess as discovery, right J? What's that about?

J. Baugh: That's right. Once the complaint has been filed, once the answer has been filed, then the next phase is discovery. And discovery is actually broken into two separate phases, one of which is written discovery, where the lawyers will exchange questions and answers that are in writing. They're called interrogatories. They may be called request for production of documents. They may be called request for admissions. Sometimes you'll get those documents along with the summons and complaint. Sometimes you'll get those later.
Then the next part of discovery would be depositions. And depositions are a very key development in the litigation process. It is out-of-court testimony that's given under oath. A deposition is usually done in a conference room, maybe at a lawyer's office, maybe at a hospital, maybe in your office. It's rarely done in a courtroom, but it's just as important as testimony that you would give in court because it is given under oath.
Now, there are different people who are involved in a lawsuit that will give depositions and there's an order to that. Usually the parties are deposed first, then fact witnesses are deposed second, and then expert witnesses are deposed last. The plaintiff is usually the one that has to give the first deposition because the burden of proof is on the plaintiff, and it's really important that the defendant attend that deposition.

Katy Smith: Your defense attorney will have you very well prepared for your deposition, but it's going to take some time. They're going to probably be multiple preparation sessions, probably a mock deposition. So just be prepared, be willing with your time and realize that it will help you not lose your case. It will further the defensibility of your lawsuit.

J. Baugh: And then once the parties are deposed and the fact witnesses are deposed, then the last set of depositions would be expert witnesses and that's required in a medical malpractice case. And so the lawyers will then retain physicians who will testify as to whether the doctor acted within the standard of care or whether he didn't. So that would be the last set of depositions that would be taken.

Brian: Okay. So now discovery has been completed, so it's time to try and resolve the lawsuit. Is that correct? So this next phase of litigation is called resolution. So what happens during resolution, Katy?

Katy Smith: Well, there are a lot of different ways a lawsuit can be resolved. Sometimes you can have a plaintiff dismiss a lawsuit. Another way that lawsuit can be resolved is the defendant can win it on a motion. A third way and one that I think our physicians are aware of is settlement. And then the final way is of course a trial.

J. Baugh: So let's talk a little bit about the settlement process and how that works.

Brian: Okay.

J. Baugh: So whether or not a case can be compromised or not is often raised during a case. Sometimes a plaintiff will raise it, sometimes the defendant will raise it. Sometimes the court will raise it. There might be something called a pre-trial settlement conference or a pre-trial conference in which the court asks the parties, "Has there been an attempt to try and settle the case?" And so that often comes up in a case whether a case should be settled or not. And it's often done through a process that's either a mediation or a judicial settlement conference where you have a mediator or perhaps a judge who's trying to get the parties to come to some sort of a resolution. Now, these conferences or these mediations usually take a full day in which they try to decide whether they can compromise the case. So it's always beneficial to have a mediation because you get closer together in terms of trying to reach a number that everyone can live with, but you also learn something that will help you as the case develops further.

Brian: Katy, if the mediation just doesn't work out even at that time or days later, the next step is going to end up being a trial.

Katy Smith: That's right. Most often medical malpractice cases are decided by a jury that they could be decided by a judge. But it's a formal process. It can be a lengthy process. You will need to attend every day of a trial. You'll spend a lot of time working with your defense attorney, preparing for the trial. And I will say, even though again, that can be difficult to find all that time, look at it in a positive way. The more you learn about the trial, the experience, what the court will look like, how the trial will be conducted, it'll ease your anxiety about the trial itself. You'll feel more prepared.

J. Baugh: That's right. So we've talked about settlement, we've talked about trial, and so you would think that once the trial is over, the case is over. Unfortunately, just because the trial is over, that doesn't necessarily mean the case is over. It may take on another life through the appellate process.

Brian: This has been incredibly informative, a lot of great information. As we get ready to wrap up, do you guys have any final thoughts on litigation 101?

Katy Smith: I want to just mention stress. The reality is less scary than the fear, but I just would encourage physicians to not let the stress control them. Speak to your defense attorney, speak to a healthcare provider, speak to your spouse, speak to one of us. There are a lot of resources.

Meghan Clark: This was a wonderful episode with a ton of helpful information regarding a malpractice lawsuit and just what to expect throughout the life of the lawsuit. To hear more about the basics of the litigation process, listen in to Episode 73: Litigation 101.
Now that we have had a chance to get a better understanding of the litigation process as a whole, let's take a more in-depth look at depositions. In October 2018, we sat down with attorney Wendy Longmire and discussed how to properly prepare physicians for testimony. Let's take a look back at this conversation.

Brian: Explain to someone like myself in the most simple of terms, what is a deposition?

Wendy Longmire: A deposition is basically sworn out-of-court testimony. That is usually done in the conference rooms of law firms across the country, and it is used for a variety of purposes. It comes along after the lawsuit has been filed. Let's assume that we get to that point and the lawsuit is filed and counsel is retained for a policy holder, and there is a meeting between counsel and the practice provider. That might be a physician, it might be a hospital, it might be a nurse, nurse practitioner. And from there you file an answer to that lawsuit. After the answer, there's an exchange of written discovery, and I'm going to talk to you today really primarily about oral discovery, which is the deposition. The purpose for the deposition for the other side is to learn, to discover, to find out. It's also to preserve.
And so it is to preserve the testimony of this individual so that you have locked them in essentially. So there are no real surprises later on. After I take the plaintiff's deposition, they're going to want to take my client's deposition who may be the physician or the physician assistants or the advanced practice provider of any kind or the hospital or nurses like that. It's a very, very important piece of litigation, and I really can't overstate that. It comes early on in the process. So it can be a little daunting because you're not quite a seasoned to this lawsuit yet.

Brian: Sure.

Wendy Longmire: A lawsuit takes a long time

Brian: In the deposition, is it actually admissible in court or is it just the information you glean?

Wendy Longmire: It is admissible in court, especially a party deposition. A party deposition can really be used for any purpose as opposed to a witness deposition.

Brian: So what is the difference there? You said party deposition, what is that?

Wendy Longmire: Okay. For example, if I was a physician, and so I get to be Dr. Longmire for a minute.

Brian: Sure.

Wendy Longmire: And my patient is Betty Smith, and Betty Smith sues me and maybe my practice group, we are parties to the litigation. So the plaintiff versus the defendants, those are the parties.

Brian: I gotcha.

Wendy Longmire: There may be a nurse provider that provided care or someone else that is involved in the litigation and has important information. They're witnesses. That's different on how you can use their deposition. But if a party's deposition is taken, it can be used for any purpose at trial and you can bet it is. It's a very strategic tool that we use to preserve and learn and to attack and impeach.

Brian: How do you prepare a physician? Because you're used to being in the medical office, you're used to being in the surgical OR, or the emergency room or wherever you practice, but now you're finding yourself in unfamiliar territory.

Wendy Longmire: So practice, practice, practice. I've now been at this for almost 30 years, and you would think that my preparation time would be less, but I find that it's sometimes more these days.

Brian: Really.

Wendy Longmire: And what I generally do is I will set a session for about four hours that we set aside to prepare for the deposition process. And it's somewhat informal. I sort of start the process and then we talk about it much like we're doing here and talk about certain questions that might come up. And we do trial runs and see how the individual did and how they could perhaps do better. And then I usually find a second session where they now have that information and you can come back in and almost essentially do a mock deposition. Can be very helpful.
We'll oftentimes videotape the client so they can see how they are on camera.

Brian: Okay.

Wendy Longmire: It's important to look at the camera because if this deposition is used at trial, you are now looking at the jury. There's the semantics of the deposition process. And it's that very first time when you're going to be asked questions about the standard of care and comparative fault and proximate cause. And so your lawyer will, and certainly I will prepare you for that. And the standard of care is a term we lawyers use to examine and evaluate these healthcare professionals. Our definition is a legal term. Now there is a medical term. And so we try to combine those in order to fit the lawsuit. And so those are terms that you have to become very facile with and able to define them. They're going to ask you, the other lawyer is, to define what the standard of care is, whether or not you felt like you had breached the standard of care.

Brian: Often in these situations, you think about what do I need to do? How do I need to prepare? What do I need to say? How do I need to act? The opposite side of that is, how can I mess this up?

Wendy Longmire: Oh, yeah.

Brian: And mess it up really bad? So if I go from that standpoint of, "Okay, here's what I definitely need to do in reacting in my deposition in saying and speaking," where would we fall? Maybe on some of the highlights of definitely don't do this because this really messes it up.

Wendy Longmire: Right. I think sometimes physicians and our care providers believe or hope that they could win the trial in a deposition. That they're going to be able to convince the other side, "If you just listen to me, you'll see the fallacy of your ways and you will withdraw this lawsuit." I've never had that happen. And so I try to prepare them, "Look, you can't win your lawsuit, but you can lose it." And you can lose it by losing your temper, losing your focus, not telling the truth. And that sounds obvious, but sometimes when people are unsure and they're in a tense situation, they reach for an answer that may not be completely accurate or completely based on memory. And that creates a terrible trap later on if another record contradicts that.
And along those lines, there's always the medical records, and we live and die by these records. We really do. They become such a huge part of the case. And knowing your own records, there's no substitute for that. I always say that the devil's in the details and all of these hospital records with the dates and the times, all these chronologies really become crucial when you're defending a healthcare liability case, about when somebody's complained of pain was a seven, when medication was given, when the doctor rounded, who notified who. So I think it is very helpful to sit down, even though it can be tedious-

Brian: Sure.

Wendy Longmire: ... with my client and go over those details so they're not surprised when, even though it wasn't their record, when the plaintiff attorney hands them the nurse's note that says they called the doctor and the doctor didn't answer. We need to know that that's in there before we ever get to that deposition table.
Brian, one other thing that I would want to mention is that I've talked primarily in the context of when you're a party. There may also be times when you have been a provider of care and your testimony is crucial, but you've not been named. So they might subpoena you and request your deposition. And I would certainly state that on those times when there is especially litigation going on about healthcare, contact SVMIC. While you are not immune from a subpoena for a deposition, you are immune to one for trial and ultimately would have to give a deposition, but being prepared for those even when you're a witness.

Meghan Clark: To hear more about how to prepare for a deposition, listen to Episode 36: The Best Defense is a Good Offense on the SVMIC website. Now that we've covered how to prepare for a deposition, let's discuss how to prepare for the next phase of litigation, resolution. Specifically, we are going to touch on how a case can be resolved through trial. In February 2019, seasoned trial consultant, Dr. Jill Huntley-Taylor, broke down her process of preparing medical professionals for trial and eliminating surprises while going through the process. Let's revisit this episode as Dr. Huntley-Taylor discusses what to expect from jurors and what attitude to bring into the courtroom.

Jill Huntley-Ta...: As a trial consultant, we conduct mock juries, mock trials before trial. We work with witnesses, including doctors, to prepare them to testify for depositions and for trial testimony. And we help select juries and work with attorneys in preparing their opening statements and selecting the actual juries who are going to be deciding those cases.

Brian: Is there anything that surprises you about how juries perceive medical professional liability cases? Is there anything in your experience that surprises you about how they look at that?

Jill Huntley-Ta...: We try to actually avoid surprises, and that's part of doing jury research, is to before you even get to a real jury, it's letting mock jurors decide the case, talk about the case, look at the issues, what are they gravitating towards. And so I think there always are a few little surprises, things that they latch onto, things that they really want to spend their time focusing on that the trial team and the medical team didn't necessarily pay attention to in advance.

Brian: And so in those scenarios, how in the world do you prep a physician or anyone to expect the unexpected? What do you do to help make them comfortable in that space?

Jill Huntley-Ta...: Well, there are certain things that we know that jurors expect. And going into trial in any situation for the doctors and for the trial team, we can look for and build the case around meeting those jurors expectations. I like to break it down to, I use this acronym, MEDIC, and it's kind of an oversimplification, but it's one that's hopefully memorable. These are the expectations that jurors have. M, medicine. E education. D, documentation. I, informed consent. And C, caring. All of those things build up the expectations that the jurors have for what happened in this case and what the doctors or the medical team did or didn't do.

Brian: When you look at these, what are the things that are most problematic often for physicians, would you say? Is it the medicine, is it the education? Is it the informed consent or the caring? What is the one that really often jumps out of uh oh, this is going to be a big hurdle for us?

Jill Huntley-Ta...: Well, I would say three of them and I don't mean to not pick one, but the education piece can often be a problem. The education, really, I'm trying to fit the acronym MEDIC, if I had an extra C, I would call it communication. But it is how well informed, how upfront, transparent is the medical staff with the patient? A lot of times, it's the failure to be upfront, to disclose, to explain that jurors can fault a medical team for.
The other one that comes up time and time again is documentation. At trial, of course, documents are evidence, and so anything that's either in the documentation or not in the documentation is going to become an issue at trial. There are plenty of times where it's like a he said, she said situation about whether something happened. So if it's not there, it didn't happen. That's how jurors take documentation.
And the last one is the caring. This is probably the one that is the most important because at the end of the day, the jurors are looking at the doctor, they're looking at the care that the doctor provided from the moment they met the patient to the verdict. And they're sizing up this doctor, "Is this someone that I would want to care for me or my family?" And they want to know how did they treat the patient? How are they as a person? How do they behave around the courtroom? How are they on the stand? It really cuts across the board and a caring doctor is exactly what jurors expect the doctor to be.

Brian: And is there also a process of preparing the physician? Tell us about how you help prepare those physicians.

Jill Huntley-Ta...: Yeah. Well, testifying is difficult for anyone and being accused of something, of some wrongdoing in your profession is a really difficult place to come into a situation of testifying. And so a lot of what we do is to work with a witness on overcoming some of their psychological hurdles to giving what we call effective testimony.

Brian: For those policyholders out there or potential policy holders or medical professionals that might just be listening to our podcast today, what is some of the advice that you would give them?

Jill Huntley-Ta...: If you go back to that MEDIC acronym, well, some of those things, if they're done in advance, you may never even get sued. If you are a caring, connected doctor who's educating and informing your patient and your patient is making informed decisions that are documented, it may never end up in a lawsuit in the first instance.
But, we know litigation happens. People get sued and it's of no fault of their own. If you make sure that the staff is communicating with one another... We didn't really talk about this, but this idea of a medical team, jurors see a medical team and they want there to be a continuity of care and communication between members of that team. They don't want to see doctors pushing responsibility onto others-

Brian: Sure.

Jill Huntley-Ta...: ... or washing their hands of things. So getting back to the expectations of the jurors in either warding off a lawsuit or being in a better position if there is a lawsuit, it is going back to that MEDIC, being transparent, making sure things are documented, communicating with the patient.
There's a lot of things that can be done to ward off litigation and to get a better result in litigation. I guess I'd like to end on caring because I mentioned that the doctors and medical professionals are on a pedestal and that is because people believe that medical professionals go into those fields because they like to help and they want to heal and they care.

Brian: Yes.

Jill Huntley-Ta...: And even when there's a bad result, the jurors expect caring and they don't want to see the medical team running away from a bad result. They want them to care. And caring does not mean an admission of wrongdoing.

Brian: Sure.

Jill Huntley-Ta...: It doesn't mean wrongdoing at all. It just means you're human. Jurors really do expect and they look for that when they're evaluating a doctor.

Meghan Clark: The acronym MEDIC, to think of the expectations that jurors have in that oversimplified way, I think that can be very helpful. We at SVMIC know how stressful and confusing the litigation process can be. Armed with the combined knowledge of our four guest speakers, we hope you have gained a better understanding of preparing for litigation, depositions, trials by jury, and just generally feel you may know a thing or two more than you did before you listened into this episode. Thank you for tuning in to my narration of today's show. And with that, I'll hand it back to you, Renee.

Renee Tidwell: Meghan, thank you so much for narrating this conversation for us. Because statistics show physicians will likely be served a lawsuit at least once in their career, understanding what to expect and how to conduct yourself during each stage of the process is crucial. We hope taking you through the insights of our prior guests has been a benefit to you and your practice, and that there have been even some good takeaways for you to implement in your professional lives. Thank you for tuning in and please feel free to visit our show notes to listen to the full episodes mentioned through today's show.