THE ANATOMY OFTHE ANATOMY OFA LAWSUITA LAWSUITA LAWSUITA LAWSUIT

SaturdaySaturday, , February 17, 2018February 17, 2018San Francisco, CASan Francisco, CA

JAMES JAMES S. HALICZER, ESQ.S. HALICZER, ESQ.HALICZERHALICZER, PETTIS & SCHWAMM, P.A, PETTIS & SCHWAMM, P.A..FORT LAUDERDALE FLORIDAFORT LAUDERDALE FLORIDAFORT LAUDERDALE, FLORIDAFORT LAUDERDALE, FLORIDA

THE THE ANATOMY OF A LAWSUITANATOMY OF A LAWSUIT

THE BEGINNINGTHE BEGINNINGTHE BEGINNINGTHE BEGINNINGHow How do they start?do they start?

THE THE MIDDLEMIDDLEWhat What happens happens next and what do I have to do?next and what do I have to do?

THE ENDTHE ENDHow do theyHow do they stopstop??How do they How do they stopstop??

WHAT CAN I DO ABOUT IT?WHAT CAN I DO ABOUT IT?

THE BEGINNINGTHE BEGINNING

How do they start?How do they start?

•• Medical BasisMedical Basis

•• Legal BasisLegal Basis

MEDICAL BASISMEDICAL BASIS

•• WhereWhereW e eW e e•• InIn--patientpatient•• OutOut--patientpatient

•• When, the ABC’sWhen, the ABC’s,,•• AngerAnger•• Bad outcomeBad outcome•• CommunicationCommunication•• CommunicationCommunication

THE LEGAL BASISTHE LEGAL BASIS

•• Varies from state to stateVaries from state to state

•• All have these elementsAll have these elements•• DutyDuty•• BreechBreech•• BreechBreech•• Proximate causeProximate cause•• DamageDamage

DUTYDUTY

•• What is the duty?What is the duty?

bl h f h i i ibl h f h i i i…reasonable care on the part of a physician is …reasonable care on the part of a physician is that level of care, skill, and treatment which, in light of that level of care, skill, and treatment which, in light of all the surrounding circumstances, is recognized as all the surrounding circumstances, is recognized as g , gg , gacceptable and appropriate by similar and reasonably acceptable and appropriate by similar and reasonably careful careful physicians…physicians…

•• Where Where does it come from?does it come from?•• Physician/patient Physician/patient relationshiprelationship

WhWh dd h i i / ih i i / i•• When When does does physician/patientphysician/patientrelationship relationship existexist??

BREECHBREECH

•• Standard of care Standard of care established by experts, established by experts, yours and yours and theirs, relying on many theirs, relying on many yy y g yy g yresourcesresources

•• BattleBattle ofof expertsexpertsBattle Battle of of expertsexperts

BREECHBREECH

•• Standard of care Standard of care established by experts, established by experts, yours and yours and theirs, relying on many theirs, relying on many yy y g yy g yresourcesresources

•• BattleBattle of expertsof expertsBattle Battle of expertsof experts

•• Doctors Doctors vs vs LawyersLawyers

PROXIMATE CAUSEPROXIMATE CAUSE

•• What is proximate cause?What is proximate cause?

… negligence is a legal cause of the damage if it … negligence is a legal cause of the damage if it directly and in natural and continuous sequence directly and in natural and continuous sequence produces or contributes substantially to producing theproduces or contributes substantially to producing theproduces or contributes substantially to producing the produces or contributes substantially to producing the damage…damage…

E t dE t d t tt t•• Experts and Experts and treaterstreaters

•• Hotly contested issueHotly contested issue

DAMAGESDAMAGES

•• Economic/TangibleEconomic/Tangible

•• NonNon--economic/Intangibleeconomic/Intangible

ECONOMIC/TANGIBLE DAMAGESECONOMIC/TANGIBLE DAMAGES

•• Past wages, medical and out of pocket Past wages, medical and out of pocket expensesexpensespp

•• Future wages, medical and outFuture wages, medical and out--ofof--pocket pocket expensesexpensesexpensesexpenses

NONNON--ECONOMIC/INTANGIBLEECONOMIC/INTANGIBLE

•• P&S P&S –– The elephant in the roomThe elephant in the room

NONNON--ECONOMIC/INTANGIBLEECONOMIC/INTANGIBLE

•• P&S P&S –– The elephant in the roomThe elephant in the room

•• Not calculableNot calculable

•• The eye popping headlineThe eye popping headlineThe eye popping headlineThe eye popping headline

The Wall Street Journal, October 4, 2006, ,

360, September 25, 2017p

Health News, May 28, 2015

NONNON--ECONOMIC/INTANGIBLEECONOMIC/INTANGIBLE

•• P&S P&S –– TThe he elephant in the roomelephant in the room

•• Not calculableNot calculable

•• The eye popping headlineThe eye popping headlineThe eye popping headlineThe eye popping headline

•• Legislative responsesLegislative responses

HOW DOES IT STARTHOW DOES IT START

•• Suit Suit is filedis filed

•• Sheriff shows up at your doorSheriff shows up at your door

THE MIDDLETHE MIDDLE

WHAT HAPPENS NEXT?WHAT HAPPENS NEXT?•• A lot!A lot!

•• Record reviewsRecord reviews

•• Motions and hearingsMotions and hearings

•• Multiple depositionsMultiple depositions•• 100’s of thousands of dollars spent on 100’s of thousands of dollars spent on

costscosts

WHAT’S MY INVOLVEMENT?WHAT’S MY INVOLVEMENT?•• ConferencesConferences

•• InterrogatoriesInterrogatories

•• Requests for ProductionRequests for Production

•• DepositionsDepositionsDepositionsDepositions

•• MediationMediation

T i l P tiT i l P ti•• Trial PreparationTrial Preparation

•• TrialTrial

•• AppealAppeal

CONFERENCESCONFERENCES•• Attorney/clientAttorney/client

•• Time commitmentTime commitmentTime commitmentTime commitment

INTERROGATORIESINTERROGATORIES•• Written questionsWritten questions

•• Time commitmentTime commitment

REQUESTS FOR PRODUCTIONREQUESTS FOR PRODUCTION•• Medical and business recordsMedical and business recordsMedical and business recordsMedical and business records

•• Time Time commitmentcommitment

DEPOSITIONSDEPOSITIONSThree Areas of InquiryThree Areas of Inquiry

•• Education, training & experienceEducation, training & experience, g p, g p

•• The factsThe facts

•• The standard of careThe standard of careThe standard of careThe standard of care

Best PracticesBest Practices•• 3 L’s3 L’s•• 3 L’s3 L’s

•• 5 best answers5 best answers

S l tiS l ti•• SpeculationSpeculation

•• Factual testimony/attorney as advocateFactual testimony/attorney as advocate

Time CommitmentTime Commitment

MEDIATIONMEDIATIONMEDIATIONMEDIATION•• AttendanceAttendance•• Time CommitmentTime CommitmentTime CommitmentTime Commitment

TRIAL PREPARATIONTRIAL PREPARATION•• Deposition vs trial testimonyDeposition vs trial testimonyDeposition vs. trial testimonyDeposition vs. trial testimony•• AttendanceAttendance•• Time commitmentTime commitmentTime commitmentTime commitment

TRIALTRIAL•• Game dayGame day•• Game dayGame day•• AttendanceAttendance•• Time commitmentTime commitmentTime commitmentTime commitment

APPEALAPPEALAPPEALAPPEAL•• WaitWait•• Time CommitmentTime CommitmentTime CommitmentTime Commitment

THE ENDTHE ENDHow do they stop?How do they stop?

•• WinWin•• WinWin•• LoseLose

WINWIN

•• Have a drinkHave a drink•• No monies paidNo monies paido o es pa do o es pa d•• Report your victory when askedReport your victory when asked

LOSELOSE

•• Have a drinkHave a drink•• Money is paidMoney is paidy py p

•• Verdict/judgmentVerdict/judgment•• SettlementSettlement

•• Reports are madeReports are made•• Reports are madeReports are made•• State agenciesState agencies•• NPDBNPDB

ibl i i iibl i i i•• Possible investigationsPossible investigations•• Questions fromQuestions from

•• Malpractice Malpractice carriercarrierpp•• Hospital medical staff officeHospital medical staff office•• Managed careManaged care

•• Publicity and the impact on your practicePublicity and the impact on your practice•• Publicity and the impact on your practicePublicity and the impact on your practice

THE GOOD NEWSTHE GOOD NEWSANDANDANDAND

THE BAD NEWSTHE BAD NEWS

THE BAD NEWS: YOU’LL THE BAD NEWS: YOU’LL PROBABLY GET SUEDPROBABLY GET SUEDPROBABLY GET SUEDPROBABLY GET SUED

THE GOOD NEWS: NOT A SINGLE THE GOOD NEWS: NOT A SINGLE REPORTED DEATHREPORTED DEATHREPORTED DEATH REPORTED DEATH

PROXIMATELY CAUSE BY BEING PROXIMATELY CAUSE BY BEING SUEDSUEDSUEDSUED

WHAT CAN I DO ABOUT IT?WHAT CAN I DO ABOUT IT?C O OUC O OU

•• Risk reductionRisk reduction

•• Winning StrategiesWinning Strategies

WHAT CAN I DO TOWHAT CAN I DO TOC O OC O OREDUCE MY RISK OF GETTING REDUCE MY RISK OF GETTING

SUED?SUED?

•• Practice medicine within the standard of carePractice medicine within the standard of care•• Communicate with patientsCommunicate with patients

•• Explain Explain test test resultsresults

•• Tell them what to expectTell them what to expect

•• Tell them what happenedTell them what happenedpppp

•• Treat them with dignityTreat them with dignity

•• These have a high rate of ROIThese have a high rate of ROIThese have a high rate of ROIThese have a high rate of ROI

WHAT CAN I DO TO HELP ME WIN WHAT CAN I DO TO HELP ME WIN C O OC O OIF I DO GET SUED?IF I DO GET SUED?

•• DocumentationDocumentation

•• Pay attentionPay attentionPay attentionPay attention

•• Don’t be afraid to call Doc 911Don’t be afraid to call Doc 911

•• Don’t alter medical recordsDon’t alter medical records

•• These have a high rate of ROIThese have a high rate of ROI

THANK YOUTHANK YOUTHANK YOUTHANK YOU