April 2, 2020

How NOT to Sink Your Own Battleship From the Perspective of a Malpractice Defense Attorney and Surgeon’s Daughter

By Robyn Ayres


I mentioned to my father that I was going to write another article, and he suggested that I be practical and “just tell us how not to be our own worst enemy”.  On that note, here are a few pointers.

Everyone knows how important documentation is, but in this age of electronic medical records, it is even more important. For the most part, EMRs have not made charting better. They rely on templates and dropdown menus and less so on narrative notes, which are often the most critical part of the chart. Take the time to do a thorough narrative note, even if you’re exasperated by all of the clicking and scrolling. If you provide pamphlets or draw diagrams for your patient, document those and keep a copy.  

Whenever possible, have someone else with you whenever you see a patient, even if it is not a sensitive type of exam. In the unfortunate event that your patient becomes incapacitated (or dies) and cannot give her version of the discussion, the details of what was said will generally be inadmissible in court unless there is some corroboration of your version of events – either specifics contained in a chart or testimony from the other person who was in the room. For instance, say a patient is seen post-operatively by her surgeon. She looks well, reports feeling well and having walked to the bathroom, and wants to go home. The surgeon does not document this interaction, and the patient dies of sepsis days later. With no corroboration of that conversation, a jury would likely never know about it.  

If you are sued for malpractice and have to give a deposition, make time – at least two hours – to meet with your attorney and prepare. The deposition is sworn testimony which will follow you into the courtroom for trial. In fact, most defendant physician depositions these days are videotaped, and patient’s lawyers like to play portions of those taped depositions at trial. You do not want to be sitting at trial six months or more after giving a deposition and watch yourself give poorly thought-out responses. I suggest doing a mock deposition with your attorney acting as the patient’s attorney. Some patient’s attorneys treat depositions of defendant physicians like a board exam and will ask a host of detailed questions about anatomy, drug interactions, medical literature, etc. Take the time to re-familiarize yourself with the issues in your case if you are a little rusty. For instance, in the heat of the stress of a deposition, you don’t want to misstate the name of a nerve branch or how far the ureter is from some other landmark. If you are asked to give a deposition in a malpractice suit in which you are not named, for example as a treating provider, generally speaking you should still have legal representation.

Robyn Ayres joined Goodman Allen Donnelly in 2004 and has devoted her practice to defending physicians, nurses, hospitals and other health care providers in malpractice litigation. She also represents nurses and physicians in licensing and discipline matters before professional boards, and advises health care providers on quality assurance issues, patient safety and risk management.