What You Can Learn From Nightmare Malpractice Cases

By Janice G. Roven, JD, LLM

You may not be able to prevent a malpractice claim from ever being filed against you (there are a lot of folks out there looking for an easy payday). However, there are proactive steps you can take to safeguard and successfully defend your practice should a lawsuit be filed against you. Although there are basic theories of malpractice prevention, I have found it helpful to teach prevention by example.

Think Twice About Testifying Against Colleagues
Case One: I represented a podiatrist who was truly disturbed about being sued. When I met with him to discuss this matter, he informed me the patient who was suing him had not sought care and treatment with him for over a year. He had performed surgery and felt the result was excellent. He subsequently learned that the patient moved and sought care and treatment from another podiatrist.
Unfortunately, the podiatrist whom I represented had testified against the DPM from whom the patient subsequently sought care and treatment. It was my client’s position this DPM was angry at him for testifying against him in another case and this was his way of “returning the favor.” It was his position that the new DPM informed the patient the result was less than
excellent. He convinced her she needed additional surgery because of the previous DPM’s poor job.
By convincing her she needed additional surgery, he planted a seed in the patient’s mind that there was a problem. It did not take much more to convince the patient she should initiate a malpractice action. He even offered to testify against the podiatrist who treated her originally.

What You Can Learn From Case One
One method of preventing litigation is not encouraging patients to sue other podiatrists. Often, podiatrists comment on or criticize other peoples’ work. This is a very subtle method of encouraging lawsuits against your colleagues. One way to avoid being put in an uncomfortable situation is to say it is the office policy not to comment on work that was not performed in your office.
Often, attorneys approach treating podiatrists to testify against their colleagues. Non-treating podiatrists are also contacted to testify. Accordingly, give some serious thought as to whether you want to testify against a colleague. Although the financial and professional incentives of being considered an expert for the plaintiff may be alluring, give strong consideration to not participating. If podiatrists stop testifying against each other, the plaintiffs may be less likely to pursue podiatric malpractice actions.

Keep The Lines Of Communication Open
Case Two: In another case, I defended a podiatrist who performed extensive surgery on a patient. The plaintiff testified at her deposition that she had significant pain. Although she called the office to complain, the podiatrist was not made aware of the call. The receptionist told the patient to wait for the next appointment. Unfortunately, during this time frame, a complication arose and would have been easily treated if the patient were treated on the day in question.
The malpractice claim revolved around the delay in care and treatment. Whether the patient actually called the office will be a question of fact for the jury. However, the podiatrist testified he did not have a custom and practice in his office with respect to telephone calls. As such, he could only testify he did not know if his office received the call. Although we had a long discussion with his receptionist, she had no recollection of this particular call. She received so many calls that her testimony would not have been helpful.

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