Episode 141: You MUST Be Present to WIN

Speaker 1:
You are listening to Your Practice Made Perfect. Support, protection, and advice for practicing medical professionals, brought to you by SVMIC.

Renee Tidwell:
Hey, everyone, welcome back to Your Practice Made Perfect. I'm your host Renee Tidwell, and today we're bringing you a closed claim review. We're calling this one, You Must Be Present to Win. And joining me today to discuss this case is one of our senior claims attorneys here at SVMIC, J. Baugh. J, welcome to the show.

J. Baugh:
Thanks, Renee. Glad to be here.

Renee Tidwell:
Before we begin, will you remind me how long you've been doing medical malpractice defense work? I know our listeners would love to know you a little better.

J. Baugh:
Well, Renee, I was hired as a claims attorney at SVMIC back in August of 2000, and I was promoted to senior claims attorney at the beginning of 2005. So, I've been working in the claims department at SVMIC for almost 23 years now.

Renee Tidwell:
Thank you so much for sharing that. Now, I know this type of thing, you probably work with day-to-day, but for many of our listeners, a closed claim might be unfamiliar territory. I think it might help if we kicked off our conversation with just a brief explanation of what we mean by the term closed claim.

J. Baugh:
Well, let's begin by talking about what we mean when we use the word claim. A claim is when a patient requests payment for some type of injury that the patient believes one of our insureds is responsible for. The claim usually comes in the form of a lawsuit, but it could also be what we refer to as a pre-suit claim.
Sometimes the patient or the patient's attorney will send a letter to one of our insureds and request payment in lieu of filing a lawsuit. We consider those types of letters to be a claim in addition to a lawsuit being considered a claim. So, when we use the term closed claim, we mean a claim that has been resolved, and that can happen in a number of ways. A lawsuit is considered a closed claim once the lawsuit has been dismissed, and that could happen for a number of reasons. A lawsuit can be dismissed on a procedural basis. It could be dismissed voluntarily by the patient or the plaintiff as they're called in the context of a lawsuit. A lawsuit could be dismissed after a settlement has been reached or a lawsuit could be considered a closed claim after a trial has been held and all appeals have been exhausted.

Renee Tidwell:
Sounds like a lot of different variables. Thank you for that explanation. Let's go ahead and give a bit of background before we dive into the details of the case. Today we're discussing a case that went to trial and was a success for the defense. I know we're going to learn some valuable lessons along the way. So, let's kick off with an introduction to the patient and physician. Will you give us a rundown of the patient involved in the case?

J. Baugh:
Absolutely. So, here we have a young male patient with several small children, in his 20s, who presents to the ER in the early morning hours with complaints of cough, congestion, nausea, vomiting, weakness, headache and abdominal pain. He indicates he has been experiencing these symptoms for three weeks. And upon assessment, the patient had no fever, a normal oxygen saturation, somewhat low blood pressure, a pulse of 120, and respirations in the 20s. It is noted that he generally appeared weak and exhibited general tenderness and a non-distended abdomen.

Renee Tidwell:
Okay. So, now that we know a little bit about the patient, can you share a little bit about the physician involved?

J. Baugh:
Yes. The initial physician who sees the patient is a recently licensed resident physician who is moonlighting at this rural ER at the time.

Renee Tidwell:
So, the patient presents to this rural ER, the moonlighting physician assesses him. What next?

J. Baugh:
In addition to that initial assessment that I mentioned earlier, the physician assessed the lungs as normal and she decided to not order a chest X-ray because based on her physical exam of the patient, she didn't suspect pneumonia. She ended up diagnosing the patient with an upper respiratory infection and ordered antibiotics plus medication for the patient's cough, and then the patient was discharged.

Renee Tidwell:
Okay. So, to me, this sounds like a pretty uneventful ER visit.

J. Baugh:
Right, but two days later the patient presented to a different emergency department because his symptoms had worsened. In fact, his condition declined so rapidly such that he died that day. An autopsy was performed and listed the cause of death as congestive heart failure due to dilated cardiomyopathy.

Renee Tidwell:
I can see where there were several challenges stocked against the physician from the initial ER visit. Could you elaborate on that a little bit?

J. Baugh:
Yeah, there were several risks and challenges. That's right, Renee. I'll do my best to outline those for you. So, commonly defending a medical malpractice case means defending against what's called hindsight bias and hindsight bias results when the plaintiff has the benefit of knowing the outcome and can second guess the physician's care.
In this case, the physician didn't order a chest X-ray, which a plaintiff could argue and a jury could likely perceive in hindsight as being a cheap, simple and pretty easy to obtain test. So, their argument is, why not at least order a chest X-ray?

Renee Tidwell:
Right. But in that moment the physician is evaluating the patient and based on her physical exam of the patient, she did not suspect pneumonia. So, in the trial or to the patient, the hindsight bias, I assume, could be tricky to navigate.

J. Baugh:
Yes, it can be tricky. You're right. Another challenge in this case was that the patient's condition worsened significantly after discharge. Defense counsel considered that its central difficulty in the case would be convincing a jury that a person ill enough to die from congestive heart failure would not have shown signs of that condition just two days prior. And the potential for jury sympathy was also a big concern since the patient was very young, died a sudden and unexpected death and was the father of young children.
Something else we consider to be a challenge in this case was that the physician was young and appeared even more youthful than her actual age. The way a physician presents themselves does, in fact, have an effect on the jury, and that's something we always have to think about. In a medical malpractice trial, both the plaintiff and the defendant are required to have expert witnesses who will testify as to whether the defendant physician practiced within the standard of care.
So, it would be easy to think that this type of trial would become a battle of the experts, but research has shown that what the jury is really asking themselves is, "Can I trust the defendant physician. Would I be willing to be treated by this physician? Would I be willing to have a family member be treated by this physician?" So, in this case, the question was, would a jury think the physician was simply too young and inexperienced to allow the physician to treat a juror or someone in their family?

Renee Tidwell:
J, that's a great outline of the challenges the physician and the defense team faced. Can we dig in a bit to the lawsuit and the trial?

J. Baugh:
Sure. So, it's important to note the reasons for the lawsuit. So, a lawsuit is filed by the patient's spouse contending that the first physician failed to fully evaluate the patient's vital signs, failed to order a chest X-ray and failed to refer the patient to a cardiologist.

Renee Tidwell:
Let's talk about that a little bit more. I understand those are the reasons the spouse chose to file, but can you give us a little more detail?

J. Baugh:
Yeah. So, according to the plaintiff, if a chest x-ray had been performed, the congestive heart failure would've been evident, which should have prompted a referral to a cardiologist for treatment. The plaintiff continued that such a referral in treatment would've increased the patient's chances of survival.

Renee Tidwell:
Okay. So, now that we know why they chose to file the lawsuit, let's take a look at the actual trial. We shared at the beginning of the episode that this case ends in a defense verdict. What were the keys to the successful defense in this case?

J. Baugh:
So, after seven days in trial, the jury rendered a unanimous verdict in approximately two and a half hours. So, there was no question here on the jury's part.
There are some great trial takeaways to outline here for our listeners. First, the defendant physician made a very good witness on her own behalf. She did an excellent job of explaining the thoroughness of her exam and used a medical record to back up her testimony, such that everything she was telling the jury could be verified through the medical record. Now, we talk about this a lot here at SVMIC, if it's not in the medical record, it didn't happen. Often, that medical record is your only real piece of evidence to back up your testimony. Documentation in that medical record is always your best defense, and the physician did a wonderful job of thoroughly documenting the patient encounter and her reasoning behind her care.
Next, she was able to thoroughly and confidently explain her reasons for the care she provided. She explained that through her exam she was able to rule out more serious causes of the patient's condition, symptoms and vital signs. She didn't order additional tests, including an X-ray, because they wouldn't have added to her treatment and diagnosis.
Lastly, the physician's tone with the jury is important to note. She was conversational and she guided and instructed the jury on how an examination in the emergency department is conducted. She never once downplayed the devastating outcome and impact to the young patient and his family. She also acknowledged that she was, in fact, recently licensed at the time she treated the patient. Nevertheless, her confident and empathetic testimony demonstrated to the jury that her examination of the patient was thorough and complete.

Renee Tidwell:
Great takeaways for our listeners, J. And you're right. Now, I know there are some more details within this case that I think could be important to share with our listeners. There was a wonderful standard of care expert. Can you speak on that a bit? Let's start with exactly what is a standard of care expert and why do we need them?

J. Baugh:
Well, the term standard of care would be defined differently in different states, but generally speaking, the term standard of care means how a physician in a similar specialty and in a similar community would treat the patient.
We sometimes think about whether a physician practiced above or below the standard of care, but a better way of thinking about it would be whether the physician practiced within the standard of care. In other words, the standard of care shouldn't be thought of as a line and the physician is either above or below the line, but rather the standard of care should be thought of as a box with several options that would all be within the standard of care. Some physicians might treat a patient with medicine, other physicians might treat the same patient with surgery, and both of those options could be within the standard of care.

Renee Tidwell:
Now that we've got some definitions about standard of care, let's go back to this specific case and this specific standard of care expert. Can you elaborate on him or her?

J. Baugh:
Of course. So, the defense's standard of care expert was a likable country doctor who sparred with the plaintiff attorney and held his ground, but not to the extent that it was irritating. His support of the insured physician was backed up with 30 years of experience that complemented the insured physician's relative youth.
He also testified that the insured physician met the standard of care in all respects and properly diagnosed a patient based on the presenting symptoms and her examination of the patient. One of the critical components of his testimony is that he testified that no additional tests were required and the patient didn't exhibit signs of congestive heart failure at the emergency department visit.

Renee Tidwell:
It sounds like a pretty important piece of the pie for this whole entire case. So, in wrapping up this case, let's highlight some of the keys to the successful defense.

J. Baugh:
Absolutely. I think in this case there are some great key takeaways for the listeners. Foremost, the physician was very confident about the medical care she provided and had the will to go to trial and defend herself in a tragic and sympathetic case. She understood that going to trial and accepting the risk of losing and the risk of a plaintiff verdict cannot be eliminated. However, she also realized the power and benefit of thorough preparation and participating in her own defense.

Renee Tidwell:
So, that aligns with our title of this closed claim, You Must Be Present to Win. Right?

J. Baugh:
Exactly. It's also important to note, as we sort of already touched on with the discussion of the standard of care expert, the defense team in this case, they were very skilled and experienced and obtained good expert support from local physicians.
And I want to speak a bit on preparation. Both the physician and the attorneys devoted a great deal of work to preparing for the trial. Even so, they know that trials are dynamic in nature and there are surprises both good and bad. Thus, they were poised as best they could to defend against any unexpected challenges while also being ready to take full advantage of any opportunities that could benefit the defense. In one instance, the plaintiff tried to introduce a last minute witness, but because of the way the defense handled the issue, the plaintiff decided not to present the witness. In another instance, the defense received a favorable evidentiary ruling that allowed them to present certain evidence that would have been excluded from the trial, but for the fact that the plaintiff opened the door to its admission.

Renee Tidwell:
So many great examples here and nuggets to learn from. Are there any last minute tips or pieces of wisdom you'd like to share with us before we wrap up?

J. Baugh:
Above all, this story would not be told today and the physician would not have been vindicated had she not made the gutsy commitment to go to trial in a dangerous case. Hence, you must be present to win.
And one last thing I would like to add is the importance of preparing for a deposition. We've talked about the importance of preparing for trial, but preparing for a deposition can be just as important. I've heard defense attorneys say, "You can't win your case at a deposition, but you can certainly lose your case at a deposition." So, I would encourage our physicians who may have to give a deposition in a case in which the physician is a defendant, to not look at the deposition as merely a formality but rather as an important part of the defense of a case. And that means preparing for the deposition is critical to the defense of the case.

Renee Tidwell:
I know we have a great team of attorneys here at SVMIC ready to help our physicians through not just the claims process, but also talk with them about any concerns they may have. Listeners, if you've got questions, give us a call. Thanks for being here with us today, J.

J. Baugh:
Thank you for having me.

Renee Tidwell:
Absolutely. And with that, we'll say goodbye.

Speaker 1:
Thank you for listening to this episode of Your Practice Made Perfect. Listen to more episodes, subscribe to the podcast and find show notes at svmic.com/podcast.
The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policy holders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time.