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Vol. 11 No 2 | Winter 2009
Women's Health -> Legal Update
Surviving the litigation experience as a ‘defendant’ doctor
Andrew Took
LLB (Hons)


This article is 11 years old and may no longer reflect current clinical practice.

Avant statistics indicate that on average, every year, one out of every eleven obstetricians and gynaecologists in Australia will be sued for medical negligence.

Being served with a civil claim alleging that your professional negligence has led to serious injury to your patient will commonly and understandably lead to feelings of anger, hurt, disappointment and apprehension as to the effect the claim will have on your professional reputation. In addition, it will be common to feel apprehensive about how the claim against you will be managed by your professional indemnity insurer and what will be expected of you during the life of the claim.

In the recent past, we have heard comments from a plaintiff’s lawyers association implying that Avant was unwilling to settle claims, and as a tactic, designed to ‘wear down’ a plaintiff’s resources and deliberately pursued claims all the way through to hearing, regardless of the merits of the case.

On the other hand, Avant, on occasions, hears a grumbling from certain of its membership that Avant settles the vast majority of matters for reasons of commercial expediency, usually against the concerned member’s wishes and for inflated values, such practice leading to ever increasing numbers of undeserving claims being brought on the basis that plaintiff lawyers know that they will get a settlement from Avant, regardless of the merits of their client’s claim.

What is the truth of the matter? Some limited factual basis can be found for both of the above accusations. Avant has, in certain instances, defended matters right up to the time of the court hearing and then settled the matter. It is also true to say that Avant does settle the majority of the claims brought against its members.

However, despite the limited factual basis, neither the assertion of claims management by attrition or the concern of rampant commercialism is correct.

Avant’s claims management philosophy is quite simple: early assessment of a claim made against a member and in cases of deserving claims (therefore, established departure of an acceptable level of care by the member with resultant injury to the plaintiff) prompts resolution by payment of compensation. In cases where the member’s standard of treatment is assessed as appropriate, then rigorous preparation of the matter for defence is undertaken.

Actual claims practice may be illustrative. Following notification to Avant of a claim, the matter is triaged by a senior claims manager. The matter is allocated to a defence team comprising of a claims manager (all Avant’s claims managers have either tertiary health qualifications or legal qualifications and in a number of cases both), a medical advisor (our current team is comprised of physicians, general practitioners, obstetricians and gynaecologists and surgeons) and a solicitor experienced in medical negligence litigation.

A conference between our member and the defence team is arranged as soon as possible, usually held within six weeks of Avant receiving the claim. The initial conference is perhaps the most crucial stage of the assessment of the matter. It usually runs over two to three hours, though in complex matters, considerably longer. Detailed information is taken from our member and available clinical documents.

What to do on receipt of a civil claim:

  • Telephone your indemnity insurer for initial advice.
  • Collect and review all medical records and other relevant documents.
  • Prepare a draft summary of your relationship with the patient, the treatment provided and the circumstances giving rise to the claim.

At the end of the conference there is usually consensus between the team (including our member) as to one of three preliminary positions:

  1. The member’s standard of care of the patient has been assessed to have met proper professional standards and pending further investigation, including the seeking of independent medical opinion, the matter should be regarded as one for defence.
  2. Where there has been a clear departure from an appropriate level of care resulting in injury to the patient, the matter is regarded as one for settlement. (Each year we receive a significant number of such claims ranging from operating on the incorrect side and prescribing errors to surgical errors, such as inadvertent clipping of the ligament during filshie clip sterilisation.)
  3. In the minority, there are a number of matters where, at initial assessment, it is not possible to make a determination as to whether the matter can be defended or should be settled and are deferred pending the obtaining of further information.

Regardless of the preliminary view taken by the defence team, the recommendation of the team in significant claims is reviewed by a committee of external medical specialists (the committee includes practitioners from RANZCOG). At the committee meeting, the matter is presented by a specialist relevant to the nature of the claim and the recommendations of the defence team are subject to specialist clinical review.

‘Defending matters to hearing requires…a huge amount of dedication required by the defence team, not the least of it being the total cooperation and involvement of the member.’

 

Once a decision is taken, then our objective is to resolve the matter expeditiously, either by settlement or successful defence at trial. It is in no one’s interest, from a defendant’s point of view, to let matters linger on. Certain cases, however, are not amenable to early resolution, the best example of this class being severely injured children, where the extent of the child’s disabilities may not be capable of assessment until maturity.

Involvement of the member in the assessment process is central to the claims management philosophy of Avant. Settlement of a matter is done with the member’s agreement. In rare cases where the member involved disagrees with the advice to settle or defend the matter, then a dispute resolution process is commenced.

In some cases, matters are settled even where the member’s standard of care has been assessed to have been of more than an appropriate standard, on the basis that a successful defence would not have been possible. Two examples may illustrate the difficulty sometimes encountered. In one example, our member inappropriately altered his clinical records upon service of the statement of claim in an attempt to bolster his version of events. This was done in haste and without the member recalling that some years ago he had provided a true copy of his records to the patient on previous request. Without the alteration, the matter would have likely been eminently defendable. In another example, the member had a morbid fear of giving evidence in court. Supportive psychotherapy and medication was of no assistance. The factual circumstances of the case required our member to give oral evidence. While the standard of care in the matter was appropriate, the circumstances necessitated a compromised settlement.

Defending matters to hearing requires a more than substantial investment in time and resources, with a huge amount of dedication required by the defence team, not the least of it being the total cooperation and involvement of the member. As a matter of policy, Avant does not run matters to trial on behalf of its members which it does not believe the member will win.

Yet, of the matters that we run to trial, we will lose about 50 per cent. This is not because in hindsight we failed to properly assess the medical evidence or other such reason, it is because no one can predict how a trial will unfold. No matter how well the evidence and witnesses are prepared, once a trial commences, it is almost analogous to trying to ‘control a tiger by holding its tail’. On occasion, new factual evidence is given and accepted at trial which undermines the basis of assumptions on which the expert medical evidence was gathered. This, on occasions, leads to a matter which was previously marked for defence to be settled during the course of a hearing.

On occasion, an expert who presents remarkably well in conference will fall apart under cross examination in the witness box and forget all aspects of court etiquette. In one fairly recent (and painful) example, a highly qualified and experienced specialist was called on behalf of the defence and during his evidence had a highly bitter argument with the judge presiding. Where, as a matter of law, it is up to the presiding judge to weigh the evidence of often competing experts, it was not surprising that our combative expert’s evidence was not accepted with the same reverence as that of the plaintiff’s less well-credentialed (but better behaved) expert.

Tips for giving evidence at hearing:

  • Remain calm and present in a professional manner at all times (avoid arguments or heated exchanges with plaintiff’s counsel – it will not impress the judge).
  • Use simple and understandable language (remember you are being heard by a non-medically trained audience).
  • Answer the question put forward (not answering the question will appear evasive).
  • Do not reconstruct memory, if you have no direct recollection say you do not recall.
‘In the event of serious media misreporting of your matter, always seek the advice of your legal defence team before responding.’

 

Prior to or during the hearing of the matter, it is not uncommon for some cases to attract the attention of the media. For the doctor, the subject of the media scrutiny, there is often an irresistible urge to contact the journalist to attempt to ‘correct’ the story. In my experience of over 18 years in dealing with media reporting of medical negligence cases, that urge is almost always best curbed. In the event of serious media misreporting of your matter, always seek the advice of your legal defence team before responding.

Being sued by your patient is a ‘survivable’ experience, both in a personal and professional respect. The following suggestions may aid in dealing with the stress of the situation:

  • Seek to understand the legal process.
    Use your defence team to find out as much as you can about the process, what will be expected of you and most importantly, what support is available.
  • Take control.
    The perceived lack of control associated with litigation can be difficult to manage. Be self-aware of the situation and acknowledge it, focus on looking after yourself and
    taking control of other areas in your life such as personal health, diet, exercise and utilising leisure time.
  • Seek social support.
    The long period of time surrounding the litigation process can be a time of great isolation, loneliness and engender feelings of abandonment. Identify those who you feel comfortable with and seek their support.
  • Seek professional support.
    For members undergoing a claim, Avant provides the opportunity to obtain independent professional support from a qualified clinical psychologist through Avant’s member support program.

 


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