Medicolegal Issues

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pulmonary Embolism Ruled Out in Error
A 28-year-old man presented to a Maryland hospital emergency department (ED) with a two-day history of low-grade fever, nonproductive cough, and dizziness. He was also tachycardic and significantly hypoxic. After an hour, the patient was seen by the defendant emergency physician, who noted complaints of weakness, shortness of breath, and lightheadedness. The differential diagnosis included pneumonia congestive heart failure and pulmonary embolism.

After an ECG, chest x-ray, and blood work, the emergency physician made a diagnosis of pneumonia and renal insufficiency. The patient was admitted but within eight hours of arriving at the ED, was transferred to another hospital. The defendant admitting physician at the second hospital, did not evaluate the patient on admission.

Almost five hours later, the patient got out of bed and collapsed in the presence of his wife. A code was called, but the man never regained consciousness and was pronounced dead about 90 minutes later. An autopsy confirmed a pulmonary embolism as the cause of death.

Plaintiff for the decedent alleged negligence in the clinicians' failure to diagnose and treat the pulmonary embolism. The plaintiff claimed that with proper treatment, the decedent would have survived.

The defendants argued that there was no negligence involved and that heparin therapy would not have prevented the patient's death.

OUTCOME
According to a published account, a $6,116,000 verdict was returned.

COMMENT
This is a substantial verdict, reflecting the jury's revulsion at the loss of a 28-year-old patient. His initial presentation of low-grade fever, nonproductive cough, and dizziness with tachycardia and hypoxia could be consistent with either pneumonia or pulmonary embolism (PE). Given the facts presented, the chest X-ray findings and the magnitude of hypoxia are unclear. We are also not told whether any specific risk factors existed to make PE more likely, nor whether there was evidence of deep vein thrombosis (DVT) during presentation or at autopsy.

Diagnosing PE can be difficult. However, jurors confronted with a case involving a fatal PE may be led to believe that the diagnosis of PE is straightforward and should never be missed. Plaintiff's counsel will argue that the patient "would be standing here today" in a fully functional status if the diagnosis had been made.

Here, presumptively, the chest films and chest auscultation were suggestive of pneumonia and led the clinician, who actively considered PE, to ultimately exclude the possibility. It is not clear why the patient was transferred and not formally evaluated upon arrival at the second hospital, but the facts indicate that the patient was "significantly hypoxic." This should have entailed close monitoring by the receiving clinician, irrespective of the diagnosis.

The pathophysiology of PE is straightforward—but the presentation is often variable and nonspecific, and the diagnosis tricky. Thus, for the clinician confronted with a hypoxic patient, it is important to consider this diagnosis early and thoroughly. Evaluate for risk factors: hypercoagulability, as in cases of malignancy, estrogen use, pregnancy, antiphospholipid syndrome (Hughes syndrome), or genomic mutations, factor V Leiden mutation, prothrombin mutation, factor VIII mutations, protein C and protein S deficiency; venous stasis; and vascular endothelial damage, as possibly occasioned by hypertension or atherosclerotic disease.

In addition, it is important to confirm the presence or absence of a DVT. Follow evidence-based rules, such as the Well's score, to guide decision making. In Well's scoring, points are assigned for each of seven criteria, allowing the patient to be categorized by high, moderate, or low probability for PE. The Well's scoring criteria are:

1. Suspected DVT: 3 points

2. PE the most likely diagnosis, or equally likely as a second diagnosis: 3 points

3. Tachycardia (heart rate >100 beats/min): 1.5 points

4. Immobilization for at least 3 days or surgery within the previous four weeks: 1.5 points

5. History of DVT or PE: 1.5 points

6. Hemoptysis: 1 point

7. Malignancy with treatment within previous 6 months: 1 point.

Patients with a total score exceeding 6 points are considered high-probability for PE and should undergo multidetector CT. Those with a score of 2 to 6 have moderate probability and should undergo high-sensitivity D-dimer testing; in patients with negative results, PE is excluded; positive results indicate multidetector CT and lower-extremity ultrasound.

In low-probability patients (Well's score below 20) with negative D-dimer results, PE is excluded; if D-dimer results are positive, multidetector CT should be ordered.

An extensive discussion of clinical predictive rules and diagnostic modalities and treatment is beyond the scope of this comment. However, clinicians should move swiftly to apply evidence-based decision-making rules to establish a diagnosis. It should be apparent that hypoxic patients must be monitored closely—particularly when a change of provider, service, or institution occurs.

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pulmonary Embolism Ruled Out in Error
A 28-year-old man presented to a Maryland hospital emergency department (ED) with a two-day history of low-grade fever, nonproductive cough, and dizziness. He was also tachycardic and significantly hypoxic. After an hour, the patient was seen by the defendant emergency physician, who noted complaints of weakness, shortness of breath, and lightheadedness. The differential diagnosis included pneumonia congestive heart failure and pulmonary embolism.

After an ECG, chest x-ray, and blood work, the emergency physician made a diagnosis of pneumonia and renal insufficiency. The patient was admitted but within eight hours of arriving at the ED, was transferred to another hospital. The defendant admitting physician at the second hospital, did not evaluate the patient on admission.

Almost five hours later, the patient got out of bed and collapsed in the presence of his wife. A code was called, but the man never regained consciousness and was pronounced dead about 90 minutes later. An autopsy confirmed a pulmonary embolism as the cause of death.

Plaintiff for the decedent alleged negligence in the clinicians' failure to diagnose and treat the pulmonary embolism. The plaintiff claimed that with proper treatment, the decedent would have survived.

The defendants argued that there was no negligence involved and that heparin therapy would not have prevented the patient's death.

OUTCOME
According to a published account, a $6,116,000 verdict was returned.

COMMENT
This is a substantial verdict, reflecting the jury's revulsion at the loss of a 28-year-old patient. His initial presentation of low-grade fever, nonproductive cough, and dizziness with tachycardia and hypoxia could be consistent with either pneumonia or pulmonary embolism (PE). Given the facts presented, the chest X-ray findings and the magnitude of hypoxia are unclear. We are also not told whether any specific risk factors existed to make PE more likely, nor whether there was evidence of deep vein thrombosis (DVT) during presentation or at autopsy.

Diagnosing PE can be difficult. However, jurors confronted with a case involving a fatal PE may be led to believe that the diagnosis of PE is straightforward and should never be missed. Plaintiff's counsel will argue that the patient "would be standing here today" in a fully functional status if the diagnosis had been made.

Here, presumptively, the chest films and chest auscultation were suggestive of pneumonia and led the clinician, who actively considered PE, to ultimately exclude the possibility. It is not clear why the patient was transferred and not formally evaluated upon arrival at the second hospital, but the facts indicate that the patient was "significantly hypoxic." This should have entailed close monitoring by the receiving clinician, irrespective of the diagnosis.

The pathophysiology of PE is straightforward—but the presentation is often variable and nonspecific, and the diagnosis tricky. Thus, for the clinician confronted with a hypoxic patient, it is important to consider this diagnosis early and thoroughly. Evaluate for risk factors: hypercoagulability, as in cases of malignancy, estrogen use, pregnancy, antiphospholipid syndrome (Hughes syndrome), or genomic mutations, factor V Leiden mutation, prothrombin mutation, factor VIII mutations, protein C and protein S deficiency; venous stasis; and vascular endothelial damage, as possibly occasioned by hypertension or atherosclerotic disease.

In addition, it is important to confirm the presence or absence of a DVT. Follow evidence-based rules, such as the Well's score, to guide decision making. In Well's scoring, points are assigned for each of seven criteria, allowing the patient to be categorized by high, moderate, or low probability for PE. The Well's scoring criteria are:

1. Suspected DVT: 3 points

2. PE the most likely diagnosis, or equally likely as a second diagnosis: 3 points

3. Tachycardia (heart rate >100 beats/min): 1.5 points

4. Immobilization for at least 3 days or surgery within the previous four weeks: 1.5 points

5. History of DVT or PE: 1.5 points

6. Hemoptysis: 1 point

7. Malignancy with treatment within previous 6 months: 1 point.

Patients with a total score exceeding 6 points are considered high-probability for PE and should undergo multidetector CT. Those with a score of 2 to 6 have moderate probability and should undergo high-sensitivity D-dimer testing; in patients with negative results, PE is excluded; positive results indicate multidetector CT and lower-extremity ultrasound.

In low-probability patients (Well's score below 20) with negative D-dimer results, PE is excluded; if D-dimer results are positive, multidetector CT should be ordered.

An extensive discussion of clinical predictive rules and diagnostic modalities and treatment is beyond the scope of this comment. However, clinicians should move swiftly to apply evidence-based decision-making rules to establish a diagnosis. It should be apparent that hypoxic patients must be monitored closely—particularly when a change of provider, service, or institution occurs.

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pulmonary Embolism Ruled Out in Error
A 28-year-old man presented to a Maryland hospital emergency department (ED) with a two-day history of low-grade fever, nonproductive cough, and dizziness. He was also tachycardic and significantly hypoxic. After an hour, the patient was seen by the defendant emergency physician, who noted complaints of weakness, shortness of breath, and lightheadedness. The differential diagnosis included pneumonia congestive heart failure and pulmonary embolism.

After an ECG, chest x-ray, and blood work, the emergency physician made a diagnosis of pneumonia and renal insufficiency. The patient was admitted but within eight hours of arriving at the ED, was transferred to another hospital. The defendant admitting physician at the second hospital, did not evaluate the patient on admission.

Almost five hours later, the patient got out of bed and collapsed in the presence of his wife. A code was called, but the man never regained consciousness and was pronounced dead about 90 minutes later. An autopsy confirmed a pulmonary embolism as the cause of death.

Plaintiff for the decedent alleged negligence in the clinicians' failure to diagnose and treat the pulmonary embolism. The plaintiff claimed that with proper treatment, the decedent would have survived.

The defendants argued that there was no negligence involved and that heparin therapy would not have prevented the patient's death.

OUTCOME
According to a published account, a $6,116,000 verdict was returned.

COMMENT
This is a substantial verdict, reflecting the jury's revulsion at the loss of a 28-year-old patient. His initial presentation of low-grade fever, nonproductive cough, and dizziness with tachycardia and hypoxia could be consistent with either pneumonia or pulmonary embolism (PE). Given the facts presented, the chest X-ray findings and the magnitude of hypoxia are unclear. We are also not told whether any specific risk factors existed to make PE more likely, nor whether there was evidence of deep vein thrombosis (DVT) during presentation or at autopsy.

Diagnosing PE can be difficult. However, jurors confronted with a case involving a fatal PE may be led to believe that the diagnosis of PE is straightforward and should never be missed. Plaintiff's counsel will argue that the patient "would be standing here today" in a fully functional status if the diagnosis had been made.

Here, presumptively, the chest films and chest auscultation were suggestive of pneumonia and led the clinician, who actively considered PE, to ultimately exclude the possibility. It is not clear why the patient was transferred and not formally evaluated upon arrival at the second hospital, but the facts indicate that the patient was "significantly hypoxic." This should have entailed close monitoring by the receiving clinician, irrespective of the diagnosis.

The pathophysiology of PE is straightforward—but the presentation is often variable and nonspecific, and the diagnosis tricky. Thus, for the clinician confronted with a hypoxic patient, it is important to consider this diagnosis early and thoroughly. Evaluate for risk factors: hypercoagulability, as in cases of malignancy, estrogen use, pregnancy, antiphospholipid syndrome (Hughes syndrome), or genomic mutations, factor V Leiden mutation, prothrombin mutation, factor VIII mutations, protein C and protein S deficiency; venous stasis; and vascular endothelial damage, as possibly occasioned by hypertension or atherosclerotic disease.

In addition, it is important to confirm the presence or absence of a DVT. Follow evidence-based rules, such as the Well's score, to guide decision making. In Well's scoring, points are assigned for each of seven criteria, allowing the patient to be categorized by high, moderate, or low probability for PE. The Well's scoring criteria are:

1. Suspected DVT: 3 points

2. PE the most likely diagnosis, or equally likely as a second diagnosis: 3 points

3. Tachycardia (heart rate >100 beats/min): 1.5 points

4. Immobilization for at least 3 days or surgery within the previous four weeks: 1.5 points

5. History of DVT or PE: 1.5 points

6. Hemoptysis: 1 point

7. Malignancy with treatment within previous 6 months: 1 point.

Patients with a total score exceeding 6 points are considered high-probability for PE and should undergo multidetector CT. Those with a score of 2 to 6 have moderate probability and should undergo high-sensitivity D-dimer testing; in patients with negative results, PE is excluded; positive results indicate multidetector CT and lower-extremity ultrasound.

In low-probability patients (Well's score below 20) with negative D-dimer results, PE is excluded; if D-dimer results are positive, multidetector CT should be ordered.

An extensive discussion of clinical predictive rules and diagnostic modalities and treatment is beyond the scope of this comment. However, clinicians should move swiftly to apply evidence-based decision-making rules to establish a diagnosis. It should be apparent that hypoxic patients must be monitored closely—particularly when a change of provider, service, or institution occurs.

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A Michigan woman, age 37, presented to a family medical center complaining of lower abdominal pain, gas, constipation, and occasional diarrhea of one month’s duration; she was menstruating at the time of this visit. The woman was evaluated by a physician assistant, who noted no pain on palpation. The PA made a diagnosis of irritable bowel syndrome.

Six days later, the plaintiff went to a hospital-based urgent care clinic with complaints of fatigue and nausea after meals for the previous 10 days. She was diagnosed with acute gastroenteritis and prescribed anti-nausea medication.

Four days later, the plaintiff went to an emergency department complaining of intermittent abdominal pain for the previous two weeks and irregular vaginal bleeding. When a urinary pregnancy test was returned with positive results, ultrasound was performed, revealing an ectopic pregnancy. Emergent surgery was performed, during which the patient’s right fallopian tube was removed.

The plaintiff claimed that a pregnancy test should have been performed at her earlier visits. The plaintiff claimed that any woman of childbearing age with abdominal complaints should be tested for pregnancy. A positive pregnancy test, the patient argued, would have led to an earlier diagnosis of her ectopic pregnancy, allowing her to be treated with methotrexate rather than surgery.

The defendants argued that the plaintiff’s complaints were nonspecific and that the diagnoses made were reasonable. The defendants also argued that the plaintiff would have chosen surgery as a treatment even if she had been given the option of medical intervention.

OUTCOME
According to a published account, a defense verdict was returned, and the defendants were awarded costs of $21,716.

COMMENT
This case illustrates the need to obtain a pregnancy test in all cases of abdominal or pelvic pain in women of childbearing age, as well as severe lower back pain or flank pain—even with apparently noncontributory symptoms. Establishing pregnancy status is often required before radiographic or pharmaceutical intervention as well.

It may be tempting to forego a formal pregnancy test when a patient states that she is taking birth control, has not engaged in sexual activity, or is menstruating—as was the case here. Don’t risk the disastrous consequences of a missed, ruptured ectopic pregnancy, or of a possible teratogenic therapeutic intervention by failing to obtain a pregnancy test. As in this case, the plaintiff, her attorney, and her expert will allege that the standard of care requires a determination of pregnancy status.

It could become a thorny issue, should a patient refuse a pregnancy test and insist that the clinician accept as fact her representation that she is not pregnant. In such cases, it is vital to respect the patient’s right to self-determination by validating your recognition that she is ultimately in charge of her body and her health care—while at the same time informing her that the standard of care requires conclusive objective proof that a similarly situated patient is not pregnant in order to proceed safely.

If this has been tactfully and thoughtfully explained but the patient insists on refusing the test, document her refusal with a witness present. Explain all the risks of refusal in clear terms (eg, missed ectopic pregnancy: loss of future fertility, internal bleeding, death) and document that the patient understands—again, with a witness.

In a woman of childbearing age who needs a medication with potential teratogenic effects but refuses the indicated pregnancy test, try to identify a second, safer choice—provided such an option is reasonable. —DML   

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A Michigan woman, age 37, presented to a family medical center complaining of lower abdominal pain, gas, constipation, and occasional diarrhea of one month’s duration; she was menstruating at the time of this visit. The woman was evaluated by a physician assistant, who noted no pain on palpation. The PA made a diagnosis of irritable bowel syndrome.

Six days later, the plaintiff went to a hospital-based urgent care clinic with complaints of fatigue and nausea after meals for the previous 10 days. She was diagnosed with acute gastroenteritis and prescribed anti-nausea medication.

Four days later, the plaintiff went to an emergency department complaining of intermittent abdominal pain for the previous two weeks and irregular vaginal bleeding. When a urinary pregnancy test was returned with positive results, ultrasound was performed, revealing an ectopic pregnancy. Emergent surgery was performed, during which the patient’s right fallopian tube was removed.

The plaintiff claimed that a pregnancy test should have been performed at her earlier visits. The plaintiff claimed that any woman of childbearing age with abdominal complaints should be tested for pregnancy. A positive pregnancy test, the patient argued, would have led to an earlier diagnosis of her ectopic pregnancy, allowing her to be treated with methotrexate rather than surgery.

The defendants argued that the plaintiff’s complaints were nonspecific and that the diagnoses made were reasonable. The defendants also argued that the plaintiff would have chosen surgery as a treatment even if she had been given the option of medical intervention.

OUTCOME
According to a published account, a defense verdict was returned, and the defendants were awarded costs of $21,716.

COMMENT
This case illustrates the need to obtain a pregnancy test in all cases of abdominal or pelvic pain in women of childbearing age, as well as severe lower back pain or flank pain—even with apparently noncontributory symptoms. Establishing pregnancy status is often required before radiographic or pharmaceutical intervention as well.

It may be tempting to forego a formal pregnancy test when a patient states that she is taking birth control, has not engaged in sexual activity, or is menstruating—as was the case here. Don’t risk the disastrous consequences of a missed, ruptured ectopic pregnancy, or of a possible teratogenic therapeutic intervention by failing to obtain a pregnancy test. As in this case, the plaintiff, her attorney, and her expert will allege that the standard of care requires a determination of pregnancy status.

It could become a thorny issue, should a patient refuse a pregnancy test and insist that the clinician accept as fact her representation that she is not pregnant. In such cases, it is vital to respect the patient’s right to self-determination by validating your recognition that she is ultimately in charge of her body and her health care—while at the same time informing her that the standard of care requires conclusive objective proof that a similarly situated patient is not pregnant in order to proceed safely.

If this has been tactfully and thoughtfully explained but the patient insists on refusing the test, document her refusal with a witness present. Explain all the risks of refusal in clear terms (eg, missed ectopic pregnancy: loss of future fertility, internal bleeding, death) and document that the patient understands—again, with a witness.

In a woman of childbearing age who needs a medication with potential teratogenic effects but refuses the indicated pregnancy test, try to identify a second, safer choice—provided such an option is reasonable. —DML   

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A Michigan woman, age 37, presented to a family medical center complaining of lower abdominal pain, gas, constipation, and occasional diarrhea of one month’s duration; she was menstruating at the time of this visit. The woman was evaluated by a physician assistant, who noted no pain on palpation. The PA made a diagnosis of irritable bowel syndrome.

Six days later, the plaintiff went to a hospital-based urgent care clinic with complaints of fatigue and nausea after meals for the previous 10 days. She was diagnosed with acute gastroenteritis and prescribed anti-nausea medication.

Four days later, the plaintiff went to an emergency department complaining of intermittent abdominal pain for the previous two weeks and irregular vaginal bleeding. When a urinary pregnancy test was returned with positive results, ultrasound was performed, revealing an ectopic pregnancy. Emergent surgery was performed, during which the patient’s right fallopian tube was removed.

The plaintiff claimed that a pregnancy test should have been performed at her earlier visits. The plaintiff claimed that any woman of childbearing age with abdominal complaints should be tested for pregnancy. A positive pregnancy test, the patient argued, would have led to an earlier diagnosis of her ectopic pregnancy, allowing her to be treated with methotrexate rather than surgery.

The defendants argued that the plaintiff’s complaints were nonspecific and that the diagnoses made were reasonable. The defendants also argued that the plaintiff would have chosen surgery as a treatment even if she had been given the option of medical intervention.

OUTCOME
According to a published account, a defense verdict was returned, and the defendants were awarded costs of $21,716.

COMMENT
This case illustrates the need to obtain a pregnancy test in all cases of abdominal or pelvic pain in women of childbearing age, as well as severe lower back pain or flank pain—even with apparently noncontributory symptoms. Establishing pregnancy status is often required before radiographic or pharmaceutical intervention as well.

It may be tempting to forego a formal pregnancy test when a patient states that she is taking birth control, has not engaged in sexual activity, or is menstruating—as was the case here. Don’t risk the disastrous consequences of a missed, ruptured ectopic pregnancy, or of a possible teratogenic therapeutic intervention by failing to obtain a pregnancy test. As in this case, the plaintiff, her attorney, and her expert will allege that the standard of care requires a determination of pregnancy status.

It could become a thorny issue, should a patient refuse a pregnancy test and insist that the clinician accept as fact her representation that she is not pregnant. In such cases, it is vital to respect the patient’s right to self-determination by validating your recognition that she is ultimately in charge of her body and her health care—while at the same time informing her that the standard of care requires conclusive objective proof that a similarly situated patient is not pregnant in order to proceed safely.

If this has been tactfully and thoughtfully explained but the patient insists on refusing the test, document her refusal with a witness present. Explain all the risks of refusal in clear terms (eg, missed ectopic pregnancy: loss of future fertility, internal bleeding, death) and document that the patient understands—again, with a witness.

In a woman of childbearing age who needs a medication with potential teratogenic effects but refuses the indicated pregnancy test, try to identify a second, safer choice—provided such an option is reasonable. —DML   

The unthinkable has happened: You’ve been sued.

You’ve spent the past several months explaining your care and treatment of the patient to your defense attorney. Now the plaintiff attorney wants to take your deposition.

Although a deposition is a routine part of a case (the defendant physician in a medical malpractice lawsuit is nearly always called on to give one), you’re anticipating the undertaking with understandable trepidation—maybe even fear.

There are significant differences between testifying in a deposition and testifying in a courtroom at trial. In this article, I offer 10 strategies for giving deposition testimony that strengthens your defense—or, at least, does not weaken it. In the next (March) issue of OBG Management, I will review tactics for giving testimony at trial.

Out of the courtroom, still in the fire

A deposition is generally conducted in the conference room of the firm of one of the lawyers (defense or plaintiff attorney). It is an opportunity for the plaintiff lawyer to pose questions to the defendant physician. It is also an opportunity for the lawyer to challenge the physician’s answers, test his or her resolve, and collect sound bites that are unfavorable to the doctor’s defense. These sound bites can be read to the jury at trial.

On average, a physician deposition takes 3 or 4 hours to complete, although a duration of 6 to 8 hours is not uncommon. A deposition may begin in a relatively congenial atmosphere but devolve, at some point, to a highly contentious exchange.

Rather than leave the outcome of the deposition to chance, it is better to take a few considered preparatory steps and proceed judiciously during the deposition. Here are 10 strategies to help you come out on top.

1 Tell the truth

As a defendant, your credibility is the foundation upon which all of your past actions and forthcoming testimony—at deposition and at trial—will be judged. If you manage to protect and preserve that credibility, it will be a fortress of strength. If your credibility is compromised or breached, however, you will open yourself to attacks based on your decisions as a medical practitioner, and also upon your basic character as a human being.

Tell the truth, even when the truth may appear to cast you in an unfavorable light. On many occasions, I have seen a seemingly unfavorable issue become defensible as the evidence and case develop. The discovery of additional facts during the litigation may help strengthen the defense. Therefore, tell the truth, even if it appears to be unfavorable.

Many years ago, a mentor told me: “Honesty isn’t the best policy—it’s the only policy.”

As former Senator Alan Simpson once said: “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

2 Prepare thoroughly with your defense attorney

Defending a lawsuit is a team effort. It requires cooperation between the physician, who brings medical knowledge and expertise to the table, and the defense attorney, who brings legal expertise. The more time you spend educating your attorney about the medicine, the better the result will be. And the more time the attorney spends raking you over the coals in preparation for the deposition, the better the outcome. If you view the education of your attorney and the overall defense of your case as a chore or inconvenience, you do yourself a great disservice.

Tell your defense attorney about any weaknesses that you perceive or suspect regarding the medical care rendered. It is better to develop a strategy to address a weakness rather than be surprised by or unprepared to answer a question on the issue during your deposition.

Provide your defense attorney with peer-reviewed literature and other reliable information about the medical care. Such information will help educate your attorney, may aid in defining the “standard of care,” and may be a source of potential differing views on the care rendered. Reliable literature will also alert you and your defense attorney to the potential alternative treatment theories that the plaintiff attorney is likely to raise during your deposition.

Make sure you clearly understand the meaning of “the standard of care” within the jurisdiction where your case is pending. Most jurisdictions permit a physician to be asked, point blank, “Doctor, did you meet the standard of care?” Responding that you don’t know what the definition of “standard of care” is or that you’re uncertain whether you met the standard of care would certainly be damaging to your defense.

Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.

After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.

As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.

3 Maintain your composure

A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.

There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.

The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.

Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.

Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.

4 Listen to the question

Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.

Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.

Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.

If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.

In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.

Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.

Listen to the question. Take it one question and one answer at a time.

5 Stop, look, listen

If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.

Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.

In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.

Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.

6 Answer only the question that is asked

This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:

• It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
• It creates apparent inconsistency because the answer doesn’t match the question.
• It makes the deposition longer.

I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”

From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.

You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.

7 Don’t volunteer information

This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.

The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.

Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.

This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.

8 Know the medical chart

You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.

Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.

9 Resist the urge to educate

Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.

The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.

Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”

When a lawyer feigns ignorance, beware.

10 Take a break

A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.

Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.

Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.

If you feel that you are losing your composure, it’s time to take a break.

You can make it through!

Although every situation and case are different, these 10 strategies should help you understand the deposition process and endure it. These strategies are guideposts that should be reviewed with your attorney. With careful preparation, you can both survive the process and bolster the defense of your case.

Has a deposition gone wrong?

Send us details of your worst deposition experience—and what you learned from it that can help your peers—and we will feature a selection in an upcoming issue of OBG Management. Simply email a short description to [email protected]. Include your name and city and state.

We want to hear from you! Tell us what you think.

The unthinkable has happened: You’ve been sued.

You’ve spent the past several months explaining your care and treatment of the patient to your defense attorney. Now the plaintiff attorney wants to take your deposition.

Although a deposition is a routine part of a case (the defendant physician in a medical malpractice lawsuit is nearly always called on to give one), you’re anticipating the undertaking with understandable trepidation—maybe even fear.

There are significant differences between testifying in a deposition and testifying in a courtroom at trial. In this article, I offer 10 strategies for giving deposition testimony that strengthens your defense—or, at least, does not weaken it. In the next (March) issue of OBG Management, I will review tactics for giving testimony at trial.

Out of the courtroom, still in the fire

A deposition is generally conducted in the conference room of the firm of one of the lawyers (defense or plaintiff attorney). It is an opportunity for the plaintiff lawyer to pose questions to the defendant physician. It is also an opportunity for the lawyer to challenge the physician’s answers, test his or her resolve, and collect sound bites that are unfavorable to the doctor’s defense. These sound bites can be read to the jury at trial.

On average, a physician deposition takes 3 or 4 hours to complete, although a duration of 6 to 8 hours is not uncommon. A deposition may begin in a relatively congenial atmosphere but devolve, at some point, to a highly contentious exchange.

Rather than leave the outcome of the deposition to chance, it is better to take a few considered preparatory steps and proceed judiciously during the deposition. Here are 10 strategies to help you come out on top.

1 Tell the truth

As a defendant, your credibility is the foundation upon which all of your past actions and forthcoming testimony—at deposition and at trial—will be judged. If you manage to protect and preserve that credibility, it will be a fortress of strength. If your credibility is compromised or breached, however, you will open yourself to attacks based on your decisions as a medical practitioner, and also upon your basic character as a human being.

Tell the truth, even when the truth may appear to cast you in an unfavorable light. On many occasions, I have seen a seemingly unfavorable issue become defensible as the evidence and case develop. The discovery of additional facts during the litigation may help strengthen the defense. Therefore, tell the truth, even if it appears to be unfavorable.

Many years ago, a mentor told me: “Honesty isn’t the best policy—it’s the only policy.”

As former Senator Alan Simpson once said: “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

2 Prepare thoroughly with your defense attorney

Defending a lawsuit is a team effort. It requires cooperation between the physician, who brings medical knowledge and expertise to the table, and the defense attorney, who brings legal expertise. The more time you spend educating your attorney about the medicine, the better the result will be. And the more time the attorney spends raking you over the coals in preparation for the deposition, the better the outcome. If you view the education of your attorney and the overall defense of your case as a chore or inconvenience, you do yourself a great disservice.

Tell your defense attorney about any weaknesses that you perceive or suspect regarding the medical care rendered. It is better to develop a strategy to address a weakness rather than be surprised by or unprepared to answer a question on the issue during your deposition.

Provide your defense attorney with peer-reviewed literature and other reliable information about the medical care. Such information will help educate your attorney, may aid in defining the “standard of care,” and may be a source of potential differing views on the care rendered. Reliable literature will also alert you and your defense attorney to the potential alternative treatment theories that the plaintiff attorney is likely to raise during your deposition.

Make sure you clearly understand the meaning of “the standard of care” within the jurisdiction where your case is pending. Most jurisdictions permit a physician to be asked, point blank, “Doctor, did you meet the standard of care?” Responding that you don’t know what the definition of “standard of care” is or that you’re uncertain whether you met the standard of care would certainly be damaging to your defense.

Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.

After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.

As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.

3 Maintain your composure

A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.

There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.

The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.

Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.

Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.

4 Listen to the question

Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.

Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.

Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.

If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.

In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.

Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.

Listen to the question. Take it one question and one answer at a time.

5 Stop, look, listen

If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.

Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.

In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.

Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.

6 Answer only the question that is asked

This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:

• It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
• It creates apparent inconsistency because the answer doesn’t match the question.
• It makes the deposition longer.

I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”

From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.

You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.

7 Don’t volunteer information

This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.

The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.

Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.

This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.

8 Know the medical chart

You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.

Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.

9 Resist the urge to educate

Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.

The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.

Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”

When a lawyer feigns ignorance, beware.

10 Take a break

A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.

Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.

Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.

If you feel that you are losing your composure, it’s time to take a break.

You can make it through!

Although every situation and case are different, these 10 strategies should help you understand the deposition process and endure it. These strategies are guideposts that should be reviewed with your attorney. With careful preparation, you can both survive the process and bolster the defense of your case.

Has a deposition gone wrong?

Send us details of your worst deposition experience—and what you learned from it that can help your peers—and we will feature a selection in an upcoming issue of OBG Management. Simply email a short description to [email protected]. Include your name and city and state.

We want to hear from you! Tell us what you think.

The unthinkable has happened: You’ve been sued.

You’ve spent the past several months explaining your care and treatment of the patient to your defense attorney. Now the plaintiff attorney wants to take your deposition.

Although a deposition is a routine part of a case (the defendant physician in a medical malpractice lawsuit is nearly always called on to give one), you’re anticipating the undertaking with understandable trepidation—maybe even fear.

There are significant differences between testifying in a deposition and testifying in a courtroom at trial. In this article, I offer 10 strategies for giving deposition testimony that strengthens your defense—or, at least, does not weaken it. In the next (March) issue of OBG Management, I will review tactics for giving testimony at trial.

Out of the courtroom, still in the fire

A deposition is generally conducted in the conference room of the firm of one of the lawyers (defense or plaintiff attorney). It is an opportunity for the plaintiff lawyer to pose questions to the defendant physician. It is also an opportunity for the lawyer to challenge the physician’s answers, test his or her resolve, and collect sound bites that are unfavorable to the doctor’s defense. These sound bites can be read to the jury at trial.

On average, a physician deposition takes 3 or 4 hours to complete, although a duration of 6 to 8 hours is not uncommon. A deposition may begin in a relatively congenial atmosphere but devolve, at some point, to a highly contentious exchange.

Rather than leave the outcome of the deposition to chance, it is better to take a few considered preparatory steps and proceed judiciously during the deposition. Here are 10 strategies to help you come out on top.

1 Tell the truth

As a defendant, your credibility is the foundation upon which all of your past actions and forthcoming testimony—at deposition and at trial—will be judged. If you manage to protect and preserve that credibility, it will be a fortress of strength. If your credibility is compromised or breached, however, you will open yourself to attacks based on your decisions as a medical practitioner, and also upon your basic character as a human being.

Tell the truth, even when the truth may appear to cast you in an unfavorable light. On many occasions, I have seen a seemingly unfavorable issue become defensible as the evidence and case develop. The discovery of additional facts during the litigation may help strengthen the defense. Therefore, tell the truth, even if it appears to be unfavorable.

Many years ago, a mentor told me: “Honesty isn’t the best policy—it’s the only policy.”

As former Senator Alan Simpson once said: “If you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.”

2 Prepare thoroughly with your defense attorney

Defending a lawsuit is a team effort. It requires cooperation between the physician, who brings medical knowledge and expertise to the table, and the defense attorney, who brings legal expertise. The more time you spend educating your attorney about the medicine, the better the result will be. And the more time the attorney spends raking you over the coals in preparation for the deposition, the better the outcome. If you view the education of your attorney and the overall defense of your case as a chore or inconvenience, you do yourself a great disservice.

Tell your defense attorney about any weaknesses that you perceive or suspect regarding the medical care rendered. It is better to develop a strategy to address a weakness rather than be surprised by or unprepared to answer a question on the issue during your deposition.

Provide your defense attorney with peer-reviewed literature and other reliable information about the medical care. Such information will help educate your attorney, may aid in defining the “standard of care,” and may be a source of potential differing views on the care rendered. Reliable literature will also alert you and your defense attorney to the potential alternative treatment theories that the plaintiff attorney is likely to raise during your deposition.

Make sure you clearly understand the meaning of “the standard of care” within the jurisdiction where your case is pending. Most jurisdictions permit a physician to be asked, point blank, “Doctor, did you meet the standard of care?” Responding that you don’t know what the definition of “standard of care” is or that you’re uncertain whether you met the standard of care would certainly be damaging to your defense.

Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.

After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.

As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.

3 Maintain your composure

A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.

There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.

The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.

Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.

Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.

4 Listen to the question

Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.

Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.

Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.

If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.

In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.

Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.

Listen to the question. Take it one question and one answer at a time.

5 Stop, look, listen

If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.

Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.

In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.

Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.

6 Answer only the question that is asked

This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:

• It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
• It creates apparent inconsistency because the answer doesn’t match the question.
• It makes the deposition longer.

I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”

From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.

You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.

7 Don’t volunteer information

This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.

The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.

Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.

This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.

8 Know the medical chart

You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.

Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.

9 Resist the urge to educate

Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.

The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.

Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”

When a lawyer feigns ignorance, beware.

10 Take a break

A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.

Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.

Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.

If you feel that you are losing your composure, it’s time to take a break.

You can make it through!

Although every situation and case are different, these 10 strategies should help you understand the deposition process and endure it. These strategies are guideposts that should be reviewed with your attorney. With careful preparation, you can both survive the process and bolster the defense of your case.

Has a deposition gone wrong?

Send us details of your worst deposition experience—and what you learned from it that can help your peers—and we will feature a selection in an upcoming issue of OBG Management. Simply email a short description to [email protected]. Include your name and city and state.

We want to hear from you! Tell us what you think.

ObGyn leaving for vacation urges induction

AN OBGYN OFFERED TO INDUCE LABOR at 39 weeks’ gestation for a couple’s first child because she was anticipating a vacation. In counseling, the ObGyn revealed no significant risks. The parents agreed and went to the hospital that afternoon.

Induction included cervical ripening with misoprostol followed by oxytocin, resulting in uterine tachysystole and an abnormal fetal heart-rate pattern. The child was born by cesarean delivery 25 hours after labor began.

The child suffered hypoxia, which caused hypoxic-ischemic encephalopathy, cerebral palsy, and spastic quadriparesis. He will always require 24-hour care.

PATIENT’S CLAIM Induction of labor was medically unnecessary. Informed consent was incomplete: induced labor increases the risks of hyperstimulation of labor, failure to progress, and cesarean delivery. The ObGyn was negligent: She had admitted several patients to labor and delivery that day, and delivered five babies in 19 hours, including three “unscheduled” cesarean deliveries. Because of the patient load, she was busy with other patients when a cesarean delivery became urgently needed for this baby. Hyperstimulation and fetal heart-rate abnormalities continued for several hours.

DEFENDANTS’ DEFENSE The suit was settled before trial.

VERDICT A $5.5 million Missouri settlement was reached against the ObGyn and hospital. The hospital was also required to implement new policies on induction, augmentation of labor, and informed consent.

Insulin wasn’t given to diabetic mother during labor

A PREGNANT WOMAN had pregestational insulin-dependent diabetes. She was not given insulin despite having an elevated blood glucose level at admission and during 26 hours of labor. The mother developed diabetic ketoacidosis. The fetus suffered severe ketoacidosis-induced hypoxic ischemic encephalopathy. At delivery, the infant was resuscitated, but was severely brain damaged. Life-support was withdrawn after 6 days, and the child died.

PATIENT’S CLAIM The mother alleged emotional distress for injury to the fetus in the womb, and wrongful death of the infant.

PHYSICIAN’S DEFENSE Settlements were reached during pretrial mediation.

VERDICT Virginia settlements included $1,000,000 for the wrongful death claim and $200,000 for the mother.

Bowel was perforated during hysterectomy

AFTER CONSERVATIVE MANAGEMENT of menorrhagia and dysmenorrhea, a 49-year-old woman underwent total abdominal hysterectomy. Her ObGyn performed the surgery, and his partner monitored the woman’s 2-day hospital stay. A return of bowel function was noted before her discharge.

Six days postoperatively, the patient contacted the ObGyn’s office, complaining of passing fecal matter through her vagina. Readmitted to the hospital, she was found to have a bowel perforation and vaginal fistula. The next day, the bowel was surgically repaired, and a colostomy was performed. The colostomy was reversed, successfully, 6 months later.

PATIENT’S CLAIM The ObGyn was negligent in failing to diagnose and repair the bowel perforation during surgery. A 2-cm perforation would have been visible, and subsequent surgeries and colostomy could have been avoided. She suffered another surgical scar, and could have lifelong problems with motility and bowel function. She has permanent abdominal pain.

PHYSICIAN’S DEFENSE Bowel injury is a known risk of the procedure. The woman had pre-existing abdominal adhesions from prior surgeries, which made a bowel injury more likely. The injury was undetectable during the initial surgery because it was a partial cut or tear that progressed to full perforation after normal bowel function returned. The perforation was diagnosed and repaired as quickly as possible.

VERDICT An Illinois defense verdict was returned.

Genetic defect missed on prenatal US

A PREGNANT WOMAN SAW a maternal-fetal medicine specialist, and a sonogram showed a jaw abnormality. The child was born with Treacher Collins syndrome, a genetic defect that leads to craniofacial deformities. The child has a misaligned jaw and trachea, is deaf and disfigured. She has undergone several surgeries and is expected to require more.

PATIENT’S CLAIM The mother would have chosen to terminate the pregnancy had she been given an accurate diagnosis after ultrasonography.

PHYSICIAN’S DEFENSE The case was settled before trial.

VERDICT A $2.25 million New Jersey settlement was reached.

Did inept response to fetal distress cause brain damage?

DURING LABOR, the fetus showed signs of absent or minimal heart-rate variability that lasted until delivery. The child was born with brain damage, does not have use of his limbs, is blind, and requires 24-hour care.

PATIENT’S CLAIM Neither the resident nor nurses responded to signs of fetal distress. The resident also failed to respond to tachysystole. The ObGyn did not properly supervise the resident, did not review fetal monitoring strips, and did not examine the mother until 8 hours after she arrived. Labor was allowed to continue despite fetal distress; reduced oxygen flow to the fetus caused the injury.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $14 million New Jersey settlement was reached against the hospital and ObGyn.

Excessive traction blamed for nerve injury

AN INFANT’S LEFT ARM WAS FLACCID after vaginal delivery. The child has limited range of motion and loss of strength in the left arm. Shoulder surgery has been recommended.

PATIENT’S CLAIM Excessive force and traction were exerted on the baby’s head after encountering shoulder dystocia. This caused a stretch injury to the brachial plexus nerves at C5–6.

PHYSICIAN’S DEFENSE The McRobert’s maneuver was properly used to resolve shoulder dystocia. Only gentle downward traction was used.

VERDICT An Illinois defense verdict was returned.

Drug error leads to nipple necrosis

AT RIGHT BREAST EXCISIONAL BIOPSY, a woman was given four localized injections in the same tissue space: methylene blue dye; bupivacaine, 0.25 mg with epinephrine; sodium phosphate, 2 cc; and sodium bicarbonate, 2 cc. After surgery, the patient’s right nipple began to turn black and became necrotic. A wound specialist advised her to have the nipple removed and the area debrided. She received wound treatment for several months.

PATIENT’S CLAIM Medical center staff was negligent, including OR nurses and physician who injected the sodium phosphate.

DEFENDANTS’ DEFENSE The physician who administered the sodium phosphate testified that she injected less than 1 cc before realizing the mistake. An OR nurse contacted the pharmacy; the pharmacist did not believe that there would be any damage. After surgery, the defendants admitted their error to the woman.

VERDICT Suits against the physician who injected the sodium phosphate and OR nurses were dismissed prior to trial. A $23,363 Idaho verdict was returned against the medical center.

Death postop from bowel injury

A WOMAN UNDERWENT SURGERY for blocked fallopian tubes and adhesions—procedures recommended by her ObGyn to improve her chance of successful in vitro fertilization. A surgeon performed the procedures, noting that a superficial bowel injury had occurred, and she was discharged.

The next morning, she called the ObGyn’s office to report abdominal pain; he did not ask her to come to the office. She died 2 days later.

ESTATE’S CLAIM The ObGyn should not have agreed to discharge her, particularly because the surgeon had noticed the bowel injury. The ObGyn should have examined her when she called to report abdominal pain the morning after surgery.

PHYSICIAN’S DEFENSE It was proper to rely on the surgeon’s judgment, particularly because abdominal surgery and evaluation of bowel injury were not within the ObGyn’s expertise. Abdominal pain 1 or 2 days after abdominal surgery is insufficient reason to suspect bowel perforation or evaluation. The ObGyn called the woman two times later that day, and, based on her description, believed that she was improving.

VERDICT A Virginia defense verdict was returned.

ObGyn leaving for vacation urges induction

AN OBGYN OFFERED TO INDUCE LABOR at 39 weeks’ gestation for a couple’s first child because she was anticipating a vacation. In counseling, the ObGyn revealed no significant risks. The parents agreed and went to the hospital that afternoon.

Induction included cervical ripening with misoprostol followed by oxytocin, resulting in uterine tachysystole and an abnormal fetal heart-rate pattern. The child was born by cesarean delivery 25 hours after labor began.

The child suffered hypoxia, which caused hypoxic-ischemic encephalopathy, cerebral palsy, and spastic quadriparesis. He will always require 24-hour care.

PATIENT’S CLAIM Induction of labor was medically unnecessary. Informed consent was incomplete: induced labor increases the risks of hyperstimulation of labor, failure to progress, and cesarean delivery. The ObGyn was negligent: She had admitted several patients to labor and delivery that day, and delivered five babies in 19 hours, including three “unscheduled” cesarean deliveries. Because of the patient load, she was busy with other patients when a cesarean delivery became urgently needed for this baby. Hyperstimulation and fetal heart-rate abnormalities continued for several hours.

DEFENDANTS’ DEFENSE The suit was settled before trial.

VERDICT A $5.5 million Missouri settlement was reached against the ObGyn and hospital. The hospital was also required to implement new policies on induction, augmentation of labor, and informed consent.

Insulin wasn’t given to diabetic mother during labor

A PREGNANT WOMAN had pregestational insulin-dependent diabetes. She was not given insulin despite having an elevated blood glucose level at admission and during 26 hours of labor. The mother developed diabetic ketoacidosis. The fetus suffered severe ketoacidosis-induced hypoxic ischemic encephalopathy. At delivery, the infant was resuscitated, but was severely brain damaged. Life-support was withdrawn after 6 days, and the child died.

PATIENT’S CLAIM The mother alleged emotional distress for injury to the fetus in the womb, and wrongful death of the infant.

PHYSICIAN’S DEFENSE Settlements were reached during pretrial mediation.

VERDICT Virginia settlements included $1,000,000 for the wrongful death claim and $200,000 for the mother.

Bowel was perforated during hysterectomy

AFTER CONSERVATIVE MANAGEMENT of menorrhagia and dysmenorrhea, a 49-year-old woman underwent total abdominal hysterectomy. Her ObGyn performed the surgery, and his partner monitored the woman’s 2-day hospital stay. A return of bowel function was noted before her discharge.

Six days postoperatively, the patient contacted the ObGyn’s office, complaining of passing fecal matter through her vagina. Readmitted to the hospital, she was found to have a bowel perforation and vaginal fistula. The next day, the bowel was surgically repaired, and a colostomy was performed. The colostomy was reversed, successfully, 6 months later.

PATIENT’S CLAIM The ObGyn was negligent in failing to diagnose and repair the bowel perforation during surgery. A 2-cm perforation would have been visible, and subsequent surgeries and colostomy could have been avoided. She suffered another surgical scar, and could have lifelong problems with motility and bowel function. She has permanent abdominal pain.

PHYSICIAN’S DEFENSE Bowel injury is a known risk of the procedure. The woman had pre-existing abdominal adhesions from prior surgeries, which made a bowel injury more likely. The injury was undetectable during the initial surgery because it was a partial cut or tear that progressed to full perforation after normal bowel function returned. The perforation was diagnosed and repaired as quickly as possible.

VERDICT An Illinois defense verdict was returned.

Genetic defect missed on prenatal US

A PREGNANT WOMAN SAW a maternal-fetal medicine specialist, and a sonogram showed a jaw abnormality. The child was born with Treacher Collins syndrome, a genetic defect that leads to craniofacial deformities. The child has a misaligned jaw and trachea, is deaf and disfigured. She has undergone several surgeries and is expected to require more.

PATIENT’S CLAIM The mother would have chosen to terminate the pregnancy had she been given an accurate diagnosis after ultrasonography.

PHYSICIAN’S DEFENSE The case was settled before trial.

VERDICT A $2.25 million New Jersey settlement was reached.

Did inept response to fetal distress cause brain damage?

DURING LABOR, the fetus showed signs of absent or minimal heart-rate variability that lasted until delivery. The child was born with brain damage, does not have use of his limbs, is blind, and requires 24-hour care.

PATIENT’S CLAIM Neither the resident nor nurses responded to signs of fetal distress. The resident also failed to respond to tachysystole. The ObGyn did not properly supervise the resident, did not review fetal monitoring strips, and did not examine the mother until 8 hours after she arrived. Labor was allowed to continue despite fetal distress; reduced oxygen flow to the fetus caused the injury.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $14 million New Jersey settlement was reached against the hospital and ObGyn.

Excessive traction blamed for nerve injury

AN INFANT’S LEFT ARM WAS FLACCID after vaginal delivery. The child has limited range of motion and loss of strength in the left arm. Shoulder surgery has been recommended.

PATIENT’S CLAIM Excessive force and traction were exerted on the baby’s head after encountering shoulder dystocia. This caused a stretch injury to the brachial plexus nerves at C5–6.

PHYSICIAN’S DEFENSE The McRobert’s maneuver was properly used to resolve shoulder dystocia. Only gentle downward traction was used.

VERDICT An Illinois defense verdict was returned.

Drug error leads to nipple necrosis

AT RIGHT BREAST EXCISIONAL BIOPSY, a woman was given four localized injections in the same tissue space: methylene blue dye; bupivacaine, 0.25 mg with epinephrine; sodium phosphate, 2 cc; and sodium bicarbonate, 2 cc. After surgery, the patient’s right nipple began to turn black and became necrotic. A wound specialist advised her to have the nipple removed and the area debrided. She received wound treatment for several months.

PATIENT’S CLAIM Medical center staff was negligent, including OR nurses and physician who injected the sodium phosphate.

DEFENDANTS’ DEFENSE The physician who administered the sodium phosphate testified that she injected less than 1 cc before realizing the mistake. An OR nurse contacted the pharmacy; the pharmacist did not believe that there would be any damage. After surgery, the defendants admitted their error to the woman.

VERDICT Suits against the physician who injected the sodium phosphate and OR nurses were dismissed prior to trial. A $23,363 Idaho verdict was returned against the medical center.

Death postop from bowel injury

A WOMAN UNDERWENT SURGERY for blocked fallopian tubes and adhesions—procedures recommended by her ObGyn to improve her chance of successful in vitro fertilization. A surgeon performed the procedures, noting that a superficial bowel injury had occurred, and she was discharged.

The next morning, she called the ObGyn’s office to report abdominal pain; he did not ask her to come to the office. She died 2 days later.

ESTATE’S CLAIM The ObGyn should not have agreed to discharge her, particularly because the surgeon had noticed the bowel injury. The ObGyn should have examined her when she called to report abdominal pain the morning after surgery.

PHYSICIAN’S DEFENSE It was proper to rely on the surgeon’s judgment, particularly because abdominal surgery and evaluation of bowel injury were not within the ObGyn’s expertise. Abdominal pain 1 or 2 days after abdominal surgery is insufficient reason to suspect bowel perforation or evaluation. The ObGyn called the woman two times later that day, and, based on her description, believed that she was improving.

VERDICT A Virginia defense verdict was returned.

ObGyn leaving for vacation urges induction

AN OBGYN OFFERED TO INDUCE LABOR at 39 weeks’ gestation for a couple’s first child because she was anticipating a vacation. In counseling, the ObGyn revealed no significant risks. The parents agreed and went to the hospital that afternoon.

Induction included cervical ripening with misoprostol followed by oxytocin, resulting in uterine tachysystole and an abnormal fetal heart-rate pattern. The child was born by cesarean delivery 25 hours after labor began.

The child suffered hypoxia, which caused hypoxic-ischemic encephalopathy, cerebral palsy, and spastic quadriparesis. He will always require 24-hour care.

PATIENT’S CLAIM Induction of labor was medically unnecessary. Informed consent was incomplete: induced labor increases the risks of hyperstimulation of labor, failure to progress, and cesarean delivery. The ObGyn was negligent: She had admitted several patients to labor and delivery that day, and delivered five babies in 19 hours, including three “unscheduled” cesarean deliveries. Because of the patient load, she was busy with other patients when a cesarean delivery became urgently needed for this baby. Hyperstimulation and fetal heart-rate abnormalities continued for several hours.

DEFENDANTS’ DEFENSE The suit was settled before trial.

VERDICT A $5.5 million Missouri settlement was reached against the ObGyn and hospital. The hospital was also required to implement new policies on induction, augmentation of labor, and informed consent.

Insulin wasn’t given to diabetic mother during labor

A PREGNANT WOMAN had pregestational insulin-dependent diabetes. She was not given insulin despite having an elevated blood glucose level at admission and during 26 hours of labor. The mother developed diabetic ketoacidosis. The fetus suffered severe ketoacidosis-induced hypoxic ischemic encephalopathy. At delivery, the infant was resuscitated, but was severely brain damaged. Life-support was withdrawn after 6 days, and the child died.

PATIENT’S CLAIM The mother alleged emotional distress for injury to the fetus in the womb, and wrongful death of the infant.

PHYSICIAN’S DEFENSE Settlements were reached during pretrial mediation.

VERDICT Virginia settlements included $1,000,000 for the wrongful death claim and $200,000 for the mother.

Bowel was perforated during hysterectomy

AFTER CONSERVATIVE MANAGEMENT of menorrhagia and dysmenorrhea, a 49-year-old woman underwent total abdominal hysterectomy. Her ObGyn performed the surgery, and his partner monitored the woman’s 2-day hospital stay. A return of bowel function was noted before her discharge.

Six days postoperatively, the patient contacted the ObGyn’s office, complaining of passing fecal matter through her vagina. Readmitted to the hospital, she was found to have a bowel perforation and vaginal fistula. The next day, the bowel was surgically repaired, and a colostomy was performed. The colostomy was reversed, successfully, 6 months later.

PATIENT’S CLAIM The ObGyn was negligent in failing to diagnose and repair the bowel perforation during surgery. A 2-cm perforation would have been visible, and subsequent surgeries and colostomy could have been avoided. She suffered another surgical scar, and could have lifelong problems with motility and bowel function. She has permanent abdominal pain.

PHYSICIAN’S DEFENSE Bowel injury is a known risk of the procedure. The woman had pre-existing abdominal adhesions from prior surgeries, which made a bowel injury more likely. The injury was undetectable during the initial surgery because it was a partial cut or tear that progressed to full perforation after normal bowel function returned. The perforation was diagnosed and repaired as quickly as possible.

VERDICT An Illinois defense verdict was returned.

Genetic defect missed on prenatal US

A PREGNANT WOMAN SAW a maternal-fetal medicine specialist, and a sonogram showed a jaw abnormality. The child was born with Treacher Collins syndrome, a genetic defect that leads to craniofacial deformities. The child has a misaligned jaw and trachea, is deaf and disfigured. She has undergone several surgeries and is expected to require more.

PATIENT’S CLAIM The mother would have chosen to terminate the pregnancy had she been given an accurate diagnosis after ultrasonography.

PHYSICIAN’S DEFENSE The case was settled before trial.

VERDICT A $2.25 million New Jersey settlement was reached.

Did inept response to fetal distress cause brain damage?

DURING LABOR, the fetus showed signs of absent or minimal heart-rate variability that lasted until delivery. The child was born with brain damage, does not have use of his limbs, is blind, and requires 24-hour care.

PATIENT’S CLAIM Neither the resident nor nurses responded to signs of fetal distress. The resident also failed to respond to tachysystole. The ObGyn did not properly supervise the resident, did not review fetal monitoring strips, and did not examine the mother until 8 hours after she arrived. Labor was allowed to continue despite fetal distress; reduced oxygen flow to the fetus caused the injury.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $14 million New Jersey settlement was reached against the hospital and ObGyn.

Excessive traction blamed for nerve injury

AN INFANT’S LEFT ARM WAS FLACCID after vaginal delivery. The child has limited range of motion and loss of strength in the left arm. Shoulder surgery has been recommended.

PATIENT’S CLAIM Excessive force and traction were exerted on the baby’s head after encountering shoulder dystocia. This caused a stretch injury to the brachial plexus nerves at C5–6.

PHYSICIAN’S DEFENSE The McRobert’s maneuver was properly used to resolve shoulder dystocia. Only gentle downward traction was used.

VERDICT An Illinois defense verdict was returned.

Drug error leads to nipple necrosis

AT RIGHT BREAST EXCISIONAL BIOPSY, a woman was given four localized injections in the same tissue space: methylene blue dye; bupivacaine, 0.25 mg with epinephrine; sodium phosphate, 2 cc; and sodium bicarbonate, 2 cc. After surgery, the patient’s right nipple began to turn black and became necrotic. A wound specialist advised her to have the nipple removed and the area debrided. She received wound treatment for several months.

PATIENT’S CLAIM Medical center staff was negligent, including OR nurses and physician who injected the sodium phosphate.

DEFENDANTS’ DEFENSE The physician who administered the sodium phosphate testified that she injected less than 1 cc before realizing the mistake. An OR nurse contacted the pharmacy; the pharmacist did not believe that there would be any damage. After surgery, the defendants admitted their error to the woman.

VERDICT Suits against the physician who injected the sodium phosphate and OR nurses were dismissed prior to trial. A $23,363 Idaho verdict was returned against the medical center.

Death postop from bowel injury

A WOMAN UNDERWENT SURGERY for blocked fallopian tubes and adhesions—procedures recommended by her ObGyn to improve her chance of successful in vitro fertilization. A surgeon performed the procedures, noting that a superficial bowel injury had occurred, and she was discharged.

The next morning, she called the ObGyn’s office to report abdominal pain; he did not ask her to come to the office. She died 2 days later.

ESTATE’S CLAIM The ObGyn should not have agreed to discharge her, particularly because the surgeon had noticed the bowel injury. The ObGyn should have examined her when she called to report abdominal pain the morning after surgery.

PHYSICIAN’S DEFENSE It was proper to rely on the surgeon’s judgment, particularly because abdominal surgery and evaluation of bowel injury were not within the ObGyn’s expertise. Abdominal pain 1 or 2 days after abdominal surgery is insufficient reason to suspect bowel perforation or evaluation. The ObGyn called the woman two times later that day, and, based on her description, believed that she was improving.

VERDICT A Virginia defense verdict was returned.