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Medical Malpractice: Beyond the Discovery “Three Step�

Plaintiff Magazine

- March 7, 2012

BY BRUCE G. FAGEL

The traditional and time-honored method of discovery in all medical-malpractice cases involves three separate steps: First, obtaining the complete medical records on the plaintiff from all doctors and hospitals involved in the care; second, sending those records to a medical expert, who hopefully provides a favorable opinion on negligence and causation; and, third, taking depositions of defendant doctors and nurse employees of defendant hospital to find out what they meant in the medical records they authored.

Since the defendants control the factual side of the case with their entries in the medical records and their interpretation of what those entries mean – and with experts who can explain why the defendant was not negligent and/or not the cause of the injury or death – the defense is almost assured of a jury verdict in their favor.

All physicians who apply for privileges to practice in a hospital setting must submit an application that must be approved and reapproved every two years. But because the committee that reviews such applications is covered by Evidence Code section 1157, it is almost impossible to obtain those documents. However, all physicians have multiple relations with health insurance carriers and other entities involved in health care, all of which require applications that are not protected.

While the hospital is charged with the responsibility for granting specific hospital privileges to physicians, the documentation for anything other than a list of privileges is usually subject to an objection under Evidence Code section 1157, but CME courses are not part of any hospital process or review and therefore not subject to any section 1157 privilege claim.

Also, the application of a physician for liability insurance coverage should not be considered as covered by the immunity of the Evidence Code, and such documents are maintained by the insurance company. At a minimum, these documents should provide more information about any prior lawsuits, settlements, or other actions than would be obtained from a deposition or interrogatories about prior medical-malpractice cases.

Also, most physicians who are self employed, rather than an employee of a large medical practice group, or Kaiser, will need to have contracts with health plans that allow the health plans to list the physician as part of the health plan for coverage purposes for any patient who has health insurance. These contracts are usually based on applications which must include sufficient information about the physician’s background for the health plan to make a decision about listing that physician as covered under the health plan.

While physicians may claim that they no longer have the application, they must know the name of each health plan with which they have a contract, and those entities must maintain information about the individual physicians, including any reports from the National Practitioner Data Bank, which includes all reports of settlement, regardless of the amount or circumstances. The California Medical Board requires a report for any settlement greater than $30,000 but the NPDB has no bottom limit for reporting. Larger groups of physicians, such as the Permanente Medical Group, which employs and provides physicians for all Kaiser Foundation Hospitals, usually have clinical practice guidelines for various medical issues or conditions. Even in hospitals where the physicians are “independent contractors,” there may be clinical practice guidelines that apply to the physicians as well as nurses. In all relevant cases, a request should be made for all clinical practice guidelines that may exist on specific subjects that are relevant to the plaintiff ’s care. While the defense may claim that such guidelines are not the standard of care, it is very difficult for any defense expert to ignore or refute specific care recommendations in the clinical practice guidelines for a specific hospital or medical group.

Discovery from the state

Under California Health & Safety Code section 1279.1, which was enacted in 2007, all hospitals in California are required to report certain “adverse events” to the State Dept. of Health Care Services no later than five days after the event was detected. The Department then conducts an investigation of the event at the hospital and can fine the hospital between $25,000 and $100,000 depending on the severity of the event and the history of prior such events. Between Jan. 1, 2009, and Jan. 1, 2015, the state must make any reports of investigations “readily available to the public,” and by Jan. 1, 2015, these reports will be posted on the Department’s Web site. While many of the 28 specific adverse events may not be applicable to a specific medical-malpractice case, the last category is “an adverse event or series of adverse events that cause the death or serious disability of a patient.”

Most medical-malpractice cases would easily fit into this category, but hospitals only report the obvious events of wrong site surgery, or a retained foreign body, and some do not even report these obvious adverse events. As early as possible in any medical-malpractice case, which may be a notice of intent to sue under section 364 of the Code of Civil Procedure, the hospital should be put on notice that the incident falls within the definition of section 1279.1 (b) (7), and a request should be made for the report of any investigation.

If the hospital did not, or does not file a report in response to being placed on notice by the plaintiff ’s attorney, the deposition of the person most responsible or knowledgeable about such section 1279.1 reports should be taken to determine why such a report was not made. Often, this person is either the Hospital Risk Manager or Director of Nurses, who will sometimes admit that a report should have been sent, but they never knew about the event.

The main advantage of any such section 1279.1 report is that it is based on an early investigation of the event at the hospital, and will often identify individuals who were interviewed in the investigation, and many of the witnesses who were not directly involved in the patient’s medical care, such as supervisors.

The report will black out the name of the individual, but will identify by title, and that is sufficient to ask the hospital to provide the name and any such witness for deposition. At deposition, some witnesses will deny the statements made to the investigator. This may be used for impeachment at deposition, and thus at trial, but the report itself and the conclusion and/or fine are all hearsay and thus cannot be directly used at trial.

However, as an important discovery tool, it can lead to the discovery of admissible evi- dence. The fact that a hospital was fined by the California Dept. of Health Services cannot be placed before any jury and in those cases where it has been attempted at trial, such an attempt has always failed. Discovery on the Internet

All medical-malpractice cases should start on the Internet, before any medical records are obtained and before any other discovery from the hospital. At a minimum, the Internet contains much information about the basic medical issues in any case, including anatomy, physiology, treatment options, survival statistics, and other information that can provide a focus for the case. The Internet cannot answer the critical questions of negligence and causation. Even when there are specific Web sites that purport to discuss standard of care or causation issues, all such information is hearsay and therefore inadmissible.

In addition to information about some of the medical issues involved in the case, the Internet can provide much information about the defendant hospital, medical group, and/or individual doctor. Most hospitals and major medical groups have Web sites that provide information about the services they offer to the public and the relationships which they have with each other. Larger groups like Kaiser or hospital chains like Sutter or CHW also have educational materials and medical information either on their Web site or through links. Kaiser has its own medical journal, which is accessible through either the Internet or by subscription. Even individual physicians have Web sites that are used for advertisement purposes and some of the represen- tations made on their Web sites can be used against them in a specific case.

What is generally not available on the Internet, except through Web sites like Pubmed or specific medical journals, is the vast amount of articles that constitutes the “medical literature.” Most of the individual Web sites on specific medical topics are developed by specific hospital departments or educational groups that seek to provide medical information to the public.

Pubmed, which is the official Web site of the National Institutes of Health, does provide access to all of the articles in the medical literature, but there may be thousands of articles on a particular topic and it can be difficult to find a specific article that may be both relevant and useful to your case.

Whenever the medical literature becomes an issue in a medical-malpractice case, it is far better to have the plaintiff ’s expert find and use the relevant literature that supports their opinion, rather than the attorney attempting to provide the research for the expert.

Effective use of such discovery In addition to providing a larger context for the negligence of any specific case, evidence about the violation of a specific relevant hospital policy can be used to corroborate the testimony of any expert on standard of care. It can also make it difficult for a defense expert to claim that the standard of care was met, even though a specific written hospital policy was violated. Jurors can more easily understand and focus on a specific written hospital policy and compare the wording to the actions or inactions of the nurses in the case, rather than the over inclusive opinions by the hospital’s experts that the standard of care was met. Faced with an obvious violation of a hospital policy, a defense expert is left trying to explain why the violation of a written hospital policy is not negligence.

The overall purpose of all hospital policies, and any specific relevant policy, is the protection and safety of a patient. Any time the plaintiff ’s case can expose an issue of public safety beyond the injury to the specific plaintiff, the jury will more likely respond favorably to the plaintiff ’s theory of liability.

Bruce G. Fagel, M.D., graduated from the Univ. of Ill. (1972), and was licensed to practice medicine: Illinois, 1973; California 1975. He received his JD at Whittier College (1982). Dr. Fagel is a regularly invited speaker before organizations of attorneys, physicians, and hospitals internationally, and has been interviewed by CBS, ABC, NBC and various media affiliates. Featured in “The Best Lawyers in America, 2007,” he has been an eight-time nominee by Consumer Attorneys Association for Trial Lawyer of the Year and recently featured in the National Law Journal as “The 10 Best Trial Attorneys in the Nation”. Dr. Fagel has authored various articles on medical malpractice issues and served as a consultant on medical malpractice law to the California Judicial Counsel Committee, which wrote the new CACI jury instructions (California Approved Civil Instructions).

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