During conference, we had a visiting Trauma Surgeon analyze the Kennedy assassination. We also had a visiting EM Physican/Attorney discuss medical malpractice and put on a mock deposition with Ted Toerne.
Crandall (Visiting Professor) Trauma Lecture: Analysis of Kennedy Assassination
1. In 1963 there were Trauma Centers in existence. However, there were no Trauma Systems yet developed.
2. When Kennedy arrived at Parkland, his airway was not intact, he had agonal respirations. Kennedy was immediately intubated. However, Kennedy had an open low zone 2 neck wound and air was seen to be bubbling from neck wound. So the ET tube was pulled out and a tracheotomy was performed. This was a controversial decision because the intubating physician felt he had secured the airway. The tracheotomy was performed over the neck bullet hole. Placing a tracheostomy into a pre-existing bullet hole is considered generally suboptimal and this was one factor that fueled conspiracy theories.
3. Bilateral Chest tubes were placed with no return.
4. Kennedy had no palpable pulses on arrival and bilateral cut downs were placed. CPR was ongoing.
5. Kennedy never moved spontaneously in the ED.
6. Autopsy pictures were presented that showed a hole in Kennedy’s head and his neck.
7. Lee Harvey Oswald bought the rifle for $19.95 on mail order.
8. Kennedy’s head was never shaved nor scalp peeled back. Strangely Kennedy’s brain was lost or not saved. This fact also fueled conspiracy theories.
9. There were 2 autopsies performed on Kennedy. The navy pathologist who performed the second autopsy was not a forensic pathologist and he burned his notes. These facts also fueled conspiracy theories.
10. Modern reviews of the autopsy report and of the film of the shooting pretty conclusively support a single shooter theory.
Sullivan (visiting professor) Malpractice Primer
1. Report to the National Practitioner Data Bank is made if a payment is made on behalf of a physician in a malpractice suit. If you have too many data bank hits it may limit you ability to get a job or get credentialed.
2. The number of malpractice cases is going down but the dollar amount of payments are going up.
3. Pediatric cases have the highest average payouts due to high economic costs of a bad outcome in a child.
4. The cook county average verdict is $3 million. 30% of trials resulted in plaintiffs winning. Both nubers are higher than in other areas in the country.
5. The number of state licensing actions is steadily increasing across the country.
6. Patients sue physicians based on intense emotions, poor communication by the physicians, and inadequate explanations by the physicians. Patients want to prevent future similar occurrences, find out what happened, gain financial compensation, and hold the physician responsible.
7. Patients sue physicians based on a bad outcome and bad feelings toward the physician. They feel angry. They may feel their feelings were ignored. Doctors exacerbate the situation by weak documentation of care and inadequate patient education.
8. Actions that may prevent litigation: explanation and apology, correction of the mistake, paying compensation, admission of negligence, and honesty.
9. 80% of malpractice claims are attributed to communication problems. People won’t remember your medical knowledge, but they will remember how you made them feel.
10. Legal requirements of malpractice: Duty (responsibility to the patient), Breach of Duty (didn’t uphold the standard of care), Causation (the act caused the injury and the temporal relationship fits), Damages.
11. Depositions are the most critical part of a malpractice suit. For an attorney it is an important way of uncovering information. The attorney attempts to lock you into a single set of facts. If you go to trial, you gotta know your deposition testimony cold. You gotta stick to what you said in the deposition to show the jury you are reliable and consistent.
12. When you testify at the deposition or in court you don’t want to come off as arrogant, or slick or shady or angry. Juries award larger verdicts against docs they don’t like.
13. As much as possible do not give specific answers to general questions. If they ask you if the standard of care requires something. Your answer should be “it depends on the situation”
14. Metadata is the computer trail of your documentation. It can track all your cuts and pastes, your edits, all changes made and the times they were made. It will track if your doing twenty charts 4 days after a shift. So be aware of this and it implications as you chart. Plaintiff’s attorneys commonly subpoena metadata from a physician’s charting.
15. Never alter medical records at a later date/after a lawsuit has been filed to hide a fact or protect yourself. You can loose your license, you can face criminal charges, and you might not be covered by your malpractice insurance.
Sullivan/Toerne Mock Deposition
- The goal of the plaintiff’s attorney is to gain information and make the doctor appear stupid or incompetent.
- As much as possible, answer general questions with, “It depends on the situation.” Example question: Doctor what tests should be ordered for a patient who presents to the ED with chest pain? Answer: It depends on the clinical situation.
- Answer the questions as minimally as possible. 1-2 sentences max for each answer. Don’t answer questions directly with a yes/no response. Try to somewhat indirect if possible. Your goal is to try to not be pigeon-holed for your testimony if the case goes to trial. Don’t be too evasive though. It could potentially hurt you also.
- Elise comment: Never ask a question back to the lawyer.
- Ted and Elise comments: The only thing you can control is the pace of the deposition. You need to think very carefully and slowly before answering any question. Sullivan comment: The lawyers will try to badger you so you don’t have time to think.
- Documentation inconsistencies in the chart are killers. They make the doctor look bad. Be careful that your templates don’t have information that is incorrect for a patient. Example: On ROS patient denies headache however, patient is aphasic.
Toerne Lessons from Deposition Training
1. Depositions are an artificial environment where the attorney gets to interrogate you. This is not the setting of a normal conversation. You should never feel comfortable. Keep your guard up at all times. Elise comment: It is amazing how much medical knowledge malpractice attorneys have. You likely won’t be able to outmaneuver them with your medical knowledge.
2. Behave and dress for a deposition as if you are interviewing for a job.
3. Attorneys are fighting for money, they are not interested in finding out the truth.
4. The attorney will work to get you to say what he wants you to say. You are a lamb for his slaughter. Don’t get into the trap of trying to explain things to the attorney.
5. Ask the attorney to break down complex questions into a simpler/shorter/clearer form.
6. Elise comment: Avoid answering yes or no if possible. You can say, this is not a simple yes or no question. Ted comment: You can say,” The most honest answer to this question requires an explanation. “ You can give some other indirect answer. If you do have to answer yes or no to a question, don’t elaborate further.
7. Wait 5 seconds before responding to the question. Repeat the question in your head. Analyze the question, formulate your whole answer, then speak slowly and deliberately.
8. Don’t speculate. Say, “That would be pure speculation.”
9. Take a break if you feel fatigued, you need to go to the bathroom, or for any reason you want to.
10. Most answers should be no more than 1-2 sentences.
11. If you can’t recall something, say “I have no independent recollection.” Refer to your documentation in the chart.
12. If the attorney hands you a document, put it aside and listen carefully to the question. The document is meant as a distraction to the line of questioning.
13. During a deposition, never argue, speculate, engage in hypotheticals, or respond to an off-hand comment.
14. Be well-prepared for the deposition. Review the ED chart and know it well. Consider reading up on the topic. This however is controversial. Some lawyers recommend not reading up on topics related to the case. You may have to give a record during the deposition and trial of the references you reviewed.