As I See It

Playing the malpractice lawsuit game

Really — it’s not about you.

By Paul S. Koch, MD, Editor Emeritus

Many of the younger doctors I meet have not had the interesting misadventure of being involved in a malpractice accusation. When I explain the process, I see some are overwhelmed by the disparity between theory and reality while others are underwhelmed by the ease at which opposing opinions can be generated. As one who once provided legal consultation, but who no longer wants the headaches, I’d like to share some memories that stuck with me.

“WHAT IS TRUTH?”

You might think you would follow a route through a system of truth and justice. Toss that idea right now. Truth and justice play no part in a malpractice action. There are policy books for how legal actions are processed. The winner of an action is the one whose team defeats the other using rules you’ve never heard of or would understand if you had. It’s their court, rules and ball. You’re just the guy in the audience trying to figure out what’s going on, like ET watching a field hockey game.

EXPERTS, SHMEXPERTS

A so-called expert does not have to know anything about the case at hand. If a person is an ophthalmologist, that person is considered an expert in matters ophthalmologic, even if that person has no experience with the case like the one he’s been called to testify about:, it doesn’t matter. He is free to pontificate, even if he blathers.

You will be judged on a standard of care, meaning, “Would a prudent person have done the same in similar circumstances, knowing the same things.” You might be able to describe a dozen things a prudent person could have done, all falling within the standard of care. But the other side will bring in an expert who will testify there is only one standard of care, and that’s the path you didn’t take. I know a defendant who went to Europe to spend a week training with the inventor of a product. Did that meet standard of care for preparation? “It falls well below the standard,” the expert sniffed. Right. Like he also visited the inventor and stayed for a month?

FOR SOME, IT’S A LIVING

I know of an ophthalmology expert who regularly gives a course at legal meetings titled “How to generate a lawsuit out of any medical record.” I was sued some years back and the expert against me was a retinal surgeon — even though the case did not involve the back of the eye. This person was also a Trustee of the American Academy of Ophthalmology. When the elected officials of our national organization hire themselves out to testify in areas outside of their area of expertise, I shake my head in disgust.

Just remember the opposing lawyer does not want to destroy you. It’s in his best interest to let you live long and prosper, so he will have the chance to sue you again, and maybe even after that.

As Shakespeare might have said but didn’t, “All courts are stages, and all doctors and defendants merely players.” OM

Paul S. Koch, MD is editor emeritus of Ophthalmology Management and the medical director of Koch Eye Associates in Warwick, RI. His e-mail is pskoch@clarisvision.com.