Legal background

Plaintiff’s lawyers are expected to exercise ethical judgment and professional restraint in filing lawsuits. Instead, “naming the chart” has become standard operating procedure. In some states, tort reform has forced plaintiff’s lawyers to produce an expert’s affidavit before filing suit against a clinician. For the most part, however, there are few barriers to the disruption and stress that a malpractice trial brings.

The pathologist admitted he had made a mistake in reading the slide but denied that he had caused any damage to the patient. His basic argument was that he caused no additional harm since the cancer had already spread into the vasculature. This is known as the “causation defense.” Essentially, the clinician is arguing, “I was negligent but did not cause any additional damage.” The jury found this defense overly technical and ignored an argument that most clinicians consider viable.

A high/low agreement is a popular way for both sides of a malpractice suit to reduce risk. Since the outcome of lawsuits is unpredictable and may turn on some quirk of an individual juror or judge, both sides are at risk for an adverse verdict. The plaintiff’s lawyer invests considerable time and money in a case to bring it to trial and runs the risk of walking away empty-handed. On the other side, the insurance company faces the possibility of incurring a huge loss at the hands of an out-of-control jury. Although uncommon, megaverdicts are greatly feared, and insurance companies enter into high/low agreements to avoid them altogether.


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Risk-management principles

To most providers, admitting liability concedes too much at the beginning of a case. Given obvious evidence to the contrary, however, it is often the correct thing to do. First, it defuses the issue and removes the danger of denying what will be obvious to a lay jury (which leads to juror anger). Second, it allows the defense to focus its resources on more viable areas of the case, such as causation. The pathologist in this case took the appropriate ethical and strategic steps by admitting that he had made a mistake in reading the slide. Unfortunately, his defense team neglected to settle the case early or to aggressively defend the position with expert testimony.

Mere involvement in a questionable case can be enough to include a clinician in a malpractice suit. Mr. G made an appropriate referral to a surgeon and correctly informed the patient of the biopsy results, even though these later proved to be incorrect due to pathologist error. Nevertheless, he was still dragged into depositions and eventually to trial. The satisfaction of being dismissed from the case was little compensation for the stress brought on by two years of litigation.

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.