Intro: On-Air With OMSNIC is a podcast intended to provide information only on certain risk management topics, and is not to be construed as providing legal, medical or professional advice of any form whatsoever. Because federal state and local laws vary by location, nothing in this podcast is intended to serve as legal advice or to establish any standard of care. Legal advice, if desired, should be sought from competent counsel in your state. The views or opinions expressed by the guest do not necessarily represent the user opinions of OMSNIC or its subsidiaries.

Bill Klaproth (Host): This is On Air with OMSNIC, a podcast brought to you by snick, the leading medical professional liability insurance company owned by OMS. That exclusively ensures OMS I'm your host, Bill Klaproth. Today, Matt Coles joins us to talk about the litigation process. Matt, thank you so much for your time and joining us to tell us more about this process that we hope.

OMS will never experience, but understand that they might at some point during their career as an experienced defense counsel for Snick. We're looking forward to hearing from you. So let's get started. Matt, what is a medical malpractice claim and why has the good doctor been graced with one?

Matt Coles, JD: That's an excellent question, Bill, and that's one that I often get from my clients. And I will say that, first and foremost, when a doctor has to deal with a claim, he or she should not feel like the Lone Ranger. They should not feel like an outlier or an outcast. In our society today, if one gets a professional degree, one is almost, almost guaranteed to have at least one claim in their professional lifetime. There are the small exception of malpractice claims when a doctor has truly done something beyond the pale, something inappropriate, when even his or her colleagues would say he should be sued. But the majority of claims, malpractice claims, all that it takes are the following three factors. A patient who has experienced some type of injury or they're upset about something.

A lawyer, an attorney willing to take the case, and a doctor willing to sign his or her name to an affidavit saying that the defendant doctor did something wrong.

 And the sad reality is a majority of doctors are going to experience a claim throughout their career. That's just the sad reality and oftentimes it doesn't matter what the doctor has done.

Host: Okay, let me ask you about that. When you say that, what do you mean by that? Can you give us some examples?

Matt Coles, JD: Absolutely. There are over the space of my career I've been representing doctors for about 37 years now. And it is interesting, I've noted more and more, a doctor often can be sued almost no matter what he or she has done. And what I mean by that is, let's say that a doctor extracts a tooth, and the doctor is then sued because some nerve injury or some issue develops, and the claim against the doctor is, you should not have extracted the tooth, you should have done a coronectomy.

All right, now we flip and a doctor is sued because he or she did a coronectomy. And some issue develops, maybe an infection, maybe some problem as a result of doing the coronectomy. And then the doctor is sued and the claim is, you should have done an extraction. Another easy example that I often see, a doctor extracts a third molar, even though there are no glaring symptoms or reasons to do so.

But the doctor does so, and it's a prudent decision to do it, and it avoids future issues. But then let's say there's a nerve injury because of the extraction. And then the claim is you should have left the third molar in place. And now we switch. Another doctor, maybe the same or similar patient, decides to leave the third molar in place.

And then issues develop, and you guessed it, then the claim against the doctor is you should have extracted the tooth. So my point is, the reality in our country is that doctors have to make decisions every day, and they do. And unfortunately, in some instances, no matter what decision they make, they're subject to being sued.

Host: And you said earlier in our society, claims come with a professional degree at some point in a career, so almost expect this. So if served with a lawsuit or other type of claim, what can a doctor expect during the litigation process?

Matt Coles, JD: That's another excellent question, and it's one that I often get when I speak with a doctor, especially a doctor who has never had to deal with a lawsuit in his or her lifetime. And one of the first things I've learned that it's important for me to explain to the doctor is that it is not going to consume their life.

Often I deal with a doctor who's never been sued, and they reasonably think, well now I've been served with these legal papers, and I have to deal with this lawsuit, and it is going to be an anchor around my neck for the next four or five years. And one of the things I've done, and I've been told by doctors that they really appreciate it, is make sure the doctor understands, while the lawsuit is certainly an important thing that has to be dealt with, it is not going to consume their life unless the doctor lets it consume the life.

And I realize I'm not one, I cannot give psychoanalysis and that's not the point of this discussion we're having, but there are many doctors, well there are some doctors I've dealt with who obsess and let the lawsuit literally take over their life. And I urge them, please don't do that. When you've received a lawsuit, it's going to be dealt with in a professional manner by a lawyer.

Both OMSNIC and Fortress are companies I know very well, and I've been graced to know many of the lawyers who do their work around the country, and they're all excellent men and women. So, I tell doctors, when you have a lawsuit, you're going to be assigned a lawyer. He or she is going to have dealt with that type of claim many, many times in their career.

So you need to be very accessible to your attorney. You need to speak with your attorney. Your attorney will want to, obviously at the very beginning, meet with you and find out from your perspective what happened and just get a good assessment of your relationship with the patient, what went wrong, and just have that honest, candid discussion with your attorney.

I want to stress it's very, very important to be accessible to your attorney. While I said earlier that the doctor should not let the lawsuit consume their life, they also must be engaged. And I want to just briefly talk about that. I've had the misfortune, I will say, of dealing with some doctors, very, very few and very far between. But who are simply not available. They will not make themselves available to their attorneys. And there are lots of reasons perhaps why someone would react that way, but it's sort of like an ostrich sticking the head in the sand. Do not do that. That's two polar extremes. One, letting it absolutely take over your life.

Don't do that. The other is ignoring it and your attorney reaches out to you and you don't reach back to your attorney. Do not do that. Another, just two more brief points on this. I will say that over the past few years, I have seen again and again, at the very beginning of a lawsuit, one of the most important things the doctor and his or her staff needs to do is make one complete copy of the record.

We see again and again where there are self-inflicted wounds in a lawsuit when the doctor or the doctor's staff does not give OMSNIC Fortress, does not give the attorney a complete copy of the patient's record.

Host: Yeah, that makes sense. So let me ask you this. You said be accessible, that's very important, but don't let it consume your life. But how did they first learn that they are being sued? 

Matt Coles, JD: When the lawsuit is first received, and let me say there are usually two ways most commonly that a doctor learns of a lawsuit. First, the doctor has a conversation with the patient and it's very, very obvious the patient is very, very upset. Or if it's the patient is a child, the patient, the child patient's parent is very, very upset and the doctor realizes something's going to happen.

The second manner is they get a letter from a lawyer or sometimes, not common, but it does happen; the very first notice of a lawsuit is when a deputy or a marshal in uniform comes to the doctor's office and delivers the lawsuit. And that can be obviously a very, very jarring experience.

Absolutely. I can only imagine how stressful that could be. So now that they know they're being sued, I understand that they would first contact Snick, but then what can they expect after that?

Matt Coles, JD: First, they need to sit down with their lawyer and calmly discuss everything about the patient's experience, the good, the bad and the ugly.

I often tell doctors, put yourself in the position, you're the doctor, think about a patient interaction that you've had when a patient does not share with you certain things that you need to know to treat the patient. The patient may be ashamed of something, the patient may not want to talk about something, and the patient doesn't reveal that to the doctor.

And I urge doctors, think about that. In this situation with the lawyer, you, the doctor, are, if you will, in the place of the patient. You're giving information to your lawyer and your lawyer needs to know everything. So if there's some aspect of your patient experience that you are not happy with, you wish you had done things differently, make certain you tell your lawyer.

Here's an example. Let's say that you placed an implant, or you did an extraction, and your normal practice is to take an x-ray, but for whatever reason, you did not take an x-ray. Make certain that you speak to your attorney about that, and let your attorney know right up front, that's a problem. Or let's say that in almost every instance, you get the patient's consent before you do a procedure.

But again, for whatever reason, you did not get consent with this patient. Make certain you tell your attorney that. So that's the first stage is sitting down with your attorney, making sure that he or she is fully informed as to what happened with the patient. Next, and let me stress here, I am an attorney practicing in Georgia, and some of these topics we're discussing have differences if you're in a different state, so I just emphasize right here, make sure obviously you speak with your attorney and be guided by what your attorney tells you. But in almost every state, the doctor is going to have to deal with written discovery. That's the second stage, if you will. The first stage, meet with your lawyer, discuss the case, give your lawyer the information he or she needs to file an answer.

The second stage, broadly speaking, is you're going to receive a set of written questions and be available to your attorney to answer those questions. And let me stress here, these questions are very, very important because in almost every jurisdiction, they are treated as if you're testifying in court.

I've had the experience of some doctors treating these questions, Bill, almost as if an afterthought. Do not do that. Make certain that you give these questions the utmost attention, and you and your attorney will develop answers to these questions, and then they'll be submitted to the court. That's the second stage.

The third stage, depositions are taken. And the doctor's deposition will certainly be taken in almost every instance. And I believe there's another podcast that's available to doctors where we talk about depositions in much more detail. So I'll just simply say here, with depositions, that is the stage where the opposing attorney gets to ask the doctor questions.

And your attorney will prepare you for that. It's a very, very important step. I often tell doctors, it is probably the step of a lawsuit, the stage of a lawsuit, where you the doctor have the maximum opportunity to affect the outcome for good or bad. So that's the third step and sort of the last stage of a lawsuit is the resolution and that's going to be either a trial or a settlement.

Host: Really great advice, Matt, so thank you for that, and as you said, make sure your lawyer knows everything. Very important right up front. Pay attention to the questions and then follow your attorney's lead in the deposition. So when it comes to getting a lawsuit, what do you think is the most challenging part for doctors facing litigation?

You mentioned how earlier, how jarring it is to be served with papers, but for a doctor, what is the most challenging part generally?

Matt Coles, JD: I think hands down, two part answer. The first is, both of them are very simple. First, it's very jarring because the doctor has spent a considerable amount of time honing their profession. And now they're being accused in a public way of not being a good doctor. Obviously that's a rather crude way of putting it, but I think that's a very jarring way.

Second, my second and last point on this is, I think, to many doctors, what is incredibly disconcerting is that the lawsuit puts them in a foreign environment, an environment that they're simply not used to. Most doctors are used to being in charge. And that's a good thing. You know, Bill, that's what we want from our doctors.

When we turn to doctors for care, we want our doctors to be in charge. And doctors are in charge. They're in charge of the care they provide. Most doctors are in charge, in one way or another, of their offices. They're in charge of their staff. The buck stops with them, if you will. And that's the way they're used to running their lives.

But now in the lawsuit, they are faced with a set of rules that are often very foreign to them and they have to follow those rules and they're not in charge. So I think that's a very, very challenging aspect for many, many doctors to deal with.

Host: That's totally understandable and it totally makes sense, just human nature, of what these doctors would think and go through. So Matt, I would think the first position to take is always defend, defend, defend, but maybe sometimes it's best to settle. So what is involved with decisions to defend versus settle?

Matt Coles, JD: Again, that's a fantastic question, Bill, and many doctors deal with that. And I would say Iintuitively, instinctively I ask doctors, doctor, I want you to think about what this patient is alleging and I want you to think about your experience with the patient and I want you to tell me, did you do something wrong?

And if the answer is yes, that doesn't mean you're not a good doctor. But there are some instances, and I'm pleased to say that in my experience, they are the minority. But there are some instances when something simply didn't turn out right and the doctor wishes he or she had done something differently.

And if that's the case, it is by far the best approach to be honest, candid with your attorney and with the staff at OMSNIC or Fortress and to simply let people know I made a mistake. Something should have been done differently for this patient. And if we had done something differently, the case perhaps would have gone away.

Now, I will also add to that, there are some cases where the doctor really believes he or she did the right course of treatment, but yet if the patient has experienced what I'll call a very, very serious injury, we need to take that into consideration. And this comes down to really a balancing act. One has to decide.

And the staff at OMSNIC and Fortress are very, very good at this. We have to balance how effectively can we defend this lawsuit. We also have to consider what is the injury that's being alleged.

That affects the decision, how do we want to handle this case? Now, I will say, I've been privileged to work with OMSNIC and Fortress for many, many years, and unlike some companies, if the doctor provided proper treatment, the companies are willing to defend them.

But the doctor is going to have a very, very significant impact into the decision whether to defend or settle.

Host: Right. Well that makes sense Matt. And I know OMSNIC works closely with the doctor to evaluate the best defense approach and will not settle a claim without the consent of a doctor. So let me ask you this, in addition to being confident in the medicine, is there anything else that plays a role in the decision to defend or settle?

Matt Coles, JD: Yes, actually that's a very good follow up question because sometimes we have claims where the medicine is very defendable, but, and this is a very significant but, the documentation has holes. . I'll just give you a few small examples.

We've had situations where a doctor's records change in terms of what medication has been given, what sedative has been given, If one page in the record indicates that a certain amount of medication was given and another page indicates that another medication was given. That's horrible.

There are times where records are incomplete, grossly incomplete at times. And that can make a claim very, very difficult to defend. The doctors need to understand, and I think most of them do, that their record, at the end of the day, and I hate to put it this way, but it's the truth. The record is just about as important as the medicine because the record is what's going to be put up in front of a jury.

And if there is a documentation problem, if there is an inconsistency in the doctor's records, or if key information is missing, one quick example I'll give, let's say that a patient comes to the doctor and a third molar is extracted and there's a very good reason to extract it. There's a serious infection, let's say, but the patient's record doesn't have any indication of that infection.

Well, then when the case goes in front of a jury, we can all imagine what will happen. The other attorney will put up the record and say, all right, doctor, you've talked and talked about this infection. Show me in your record where there was an infection. And the doctor hems and haws because it's not there.

That makes a defensible case very, very difficult to defend. And very quickly, I want to add the absolute kiss of death is when a doctor alters the record. They all know not to do that, but tragically, in a very, very small number of cases, that happens. Never, ever alter your record. When you do, you've made the case indefensible, no matter what you did.

Host: Right, so then, for a doctor who is being sued, what guidance do you have for that person? How can they best get through the experience?

Matt Coles, JD: Again, fantastic real world question and that's one that often comes up. I tell doctors, and this is what I ask them to do. I say, Doctor, please engage in the following mental exercise with me. First, I want you to just think about what you do day in and day out with your patient population. And I want you to think, what do you expect, what do you want of an ideal patient in your mind?

You have a patient who's coming to you for a procedure of some type or some type of treatment. What do you want from that patient? I think most doctors would say, I want the patient to have reasonable expectations. I want the patient to have confidence in me as their doctor. I want the patient to be willing to listen to what I tell them.

I certainly want the patient to agree that he or she is not going to go Google his way into a degree and come into my office and tell me, well I saw on Google this is the way this matter should be treated. And you would want the patient to stay focused on what's important in their life, their pleasures, their family, their business, and let you the doctor focus on whatever procedure you're going to perform.

And after I get the doctor to go through that mental exercise, I point out to them, all right, that's great. In the lawsuit, think of me as the doctor, I'm the attorney, and think of you as the patient. I flip it and say, I need you to be the ideal client, just as you would have your patients be the ideal patient.

So, have reasonable expectations, have confidence in the attorney that's working with you, be willing to listen to your lawyer. By all means, do not Google questions to legal answers and don't go to your lawyer and say my sister's third cousin has a stepson who has a friend who is in law school and tells me this. Have confidence in your lawyer. I think that's what I absolutely, the guidance I would give my doctors. And if they do that, everything's going to be okay.

Host: So it sounds like you must trust your attorney to be your guide through this whole thing. So, very understandable, and I would imagine most doctors do that. So you've been defending doctors for many years now. What has that experience been like?

Matt Coles, JD: I'll tell you, it's been wonderful. And I'm going to very, very briefly relate, obviously, without naming the doctor. I learned many years ago, the impact that a lawsuit can have on a doctor. I represented a doctor through a jury trial and we prevailed. The jury came back and said they found in favor of the doctor. And I looked over and my client was literally sobbing.

And I remember putting my hands on his shoulder and I said, no, no, no, doctor, we won. The jury ruled in your favor. And he looked at me and he said, Matt, you don't know the stress this has had me under. And that is something that has stuck with me for a long, long time. Because in that case, I realized, even though we won, the stress on that doctor was tremendous.

So the experience it's one, again, I don't equate what I do with a doctor, but, it has been a wonderful experience because I'm truly able to help people, doctors, who are going through a very, very difficult experience. And I want to add also, working with the staff and the doctors at OMSNIC and Fortress, it's been a wonderful experience.

I mentioned earlier, I've been privileged and graced to work with those companies for many, many years. And one of the great things about those companies, from the doctors that work with them, to the staff, to the men and women that I work with on a daily basis who handle claims, they're truly fantastic people.

Through the years, I've worked with some wonderful doctors who review cases for those companies. These are doctors who are at the top of their profession and are available on a daily basis in those companies. And my understanding is those doctors review claims and give their feedback to the claim staff, and the claim staff then educate we the attorneys and it's just been a wonderful, wonderful experience.

Last thing if I can point out is the claim staff. I've been privileged to work with many, many men and women there and their knowledge, while they're not doctors, their knowledge of the procedures these doctors perform is truly impressive. I've had many instances when claim staff have brought to my attention, Hey Matt, you need to look at this issue.

Hey Matt, you know, this this is a good point we need to bring out or this is a bad point we need to be concerned with. So, the companies are ideally situated and constructed in a manner to really help doctors deal with claims and lawsuits. So, from start to finish, Bill, it's truly, I'll say, it's been a wonderful experience.

Host: And we're glad that you're there to support our doctors, so we thank you for that. This has really been informative, Matt. I want to thank you so much. Before we wrap up, is there anything else you want to add?

Matt Coles, JD: I simply would like to stress, and we've touched on this, but it's so critically important when a doctor has a claim or a lawsuit, turn it over to the claim staff and to your attorney. First and foremost, as soon as you know there might be a claim, turn it over to your claim staff, let them deal with it, and they will get an attorney involved when it's the right time to do so, and let those professional people deal with this so you don't have to worry about it.

Host: Very well said. Matt, thank you again for this informative discussion. We know our insureds, whether they're actively involved in litigation or just curious to learn more about the process, really appreciate the information you gave us today. Matt, thank you again. We appreciate it.

Matt Coles, JD: Thank you very much.

Host: And once again, our thanks to Matt Coles. And for more information, you can always go to OMSNIC.com. And if you found this podcast helpful, please share it on your social channels and check out the full podcast library for topics of interest to you. This is On Air With OMSNIC. Thanks for listening.

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