All right. Welcome back. We are going to go ahead and kick off our last two sessions of the afternoon. So we are going to start with a talk called How to Avoid Being Sued and Tips for Defensive Medicine and Deposition Preparation. So we are very honored and fortunate to have Lindsay DiCarlo speak to us today. She's a partner in the Tampa office of Lewis and is it Brisbois? Lewis Brisbois and is licensed to practice in New York, Florida and federal jurisdictions throughout the country. She's a graduate of the University of Florida Levin College of Law and has obtained further legal education at New York Law School specializing in trial advocacy. She has served as an executive board member on the New York City Bar Association Tort Litigation Committee and is an active member of the Florida Bar Association Trial Lawyers Division and American Bar Association Medical Malpractice Section. Ms. DiCarlo has dedicated her legal practice to defending doctors and medical providers at all stages of litigation from inception through trial and she served as trial counsel for many of the most prominent medical institutions in New York City and has invested significant resources in learning the medicine and standards of care to best serve her clients. Please join me in welcoming her. Thank you and I appreciate that introduction. I was actually thrilled and honored to be invited to speak with you today because I'm speaking on a topic that is my personal passion. I'm here because my life's work is directly intersecting with your industry. I am a medical malpractice defense attorney and whenever I am explaining what I do, I always try to say it with lightning speed so that I get defense in there quickly because as soon as the words medical malpractice are uttered, people in the legal community usually give me looks of horror or skepticism. So I've spent my entire career on the defense side. I'm on your side and I have dedicated my practice exclusively to understanding the medicine so that I can best serve the medical institutions and doctors that I represent. And I was really fortunate to have stumbled into this practice area in the earliest days of my career because I think it's probably the most interesting type of law but also the most challenging. And before I get started, I'll give you a little bit of context and background. As I was introduced, I am a partner with the law firm Lewis-Brisbois and this is a national defense firm with offices in every major city of I think 50 states now. So we have a national presence and I'm based in Tampa but I still handle medical malpractice cases throughout the United States. So I'm familiar with the legal trends and the law in many states. I moved to Tampa three years ago and prior to that I was in New York City where I worked as trial counsel for institutions and doctors from New York Presbyterian, NYU Langone, Lenox Hill, Weill Cornell, et cetera. And that's where I truly fell in love with what I do. And I'm so glad it happened this way because this is something that is personal to me. My brother, my best friend, and many members of my family and extended family practice medicine. So I understand the gravity of what we do. I understand how much litigation affects your practice and how scary it can be. So I think it's a great honor to be the person or on the team that's able to help you through this process. And not only to help you through the worst situation if you're sued, but also to be a resource to develop proactive strategies to avoid exposure to litigation. Okay. And so again, I'm just very thankful to be here because I always make jokes that I would have gone to medical school if I wasn't so terrible at chemistry. So since I am a little less intelligent than some of the people in this room, I am lucky that I got to practice a type of law that lets me be adjacent to and involved in the medical community every day. I have been the person that has had the unfortunate experience of sitting with doctors who have been sued for the first time and seeing the look on their face. So I understand how ominous this is. I understand that this is a looming cloud that really affects doctors in a way that I wish that it didn't. And I know it can be scary. So I think it's important as a member of the legal community specializing in this type of law to make myself a resource and to talk you through it beforehand so it doesn't seem like such a scary thing. There are defense attorneys who are highly specialized in medical malpractice. So if the worst happens, know that you will be represented by somebody who is distinctly equipped in this. And now that I've kind of given you a background, I will address again the elephant in the room. And although I'm only 4 foot 10, that elephant is me. I'm here talking to you guys about medical malpractice, which is something that is largely considered a bad word in the medical community. No one wants to talk about it, but everyone thinks about it. So I take no offense to the fact that many doctors do not like lawyers. I can't blame you. And I understand that there's unnecessary pressures and stresses that the legal industry has put on medicine with the rise of MedMal cases. But you can rest assured that there are techniques that you can do to mitigate your exposure to litigation and to prepare yourself for a successful defense if it ever happens. I like to provide as much information as possible so that you can spend more time worrying about your good practices and your treatment and less time worrying about the possibility of litigation. Now, the reality is is that the most recent AMA survey from last year shows that more than 50% of all medical practitioners over the age of 50 across every specialty in every state has been involved in at least one litigation in their career. And this statistic is likely to increase. I say this not to scare you, but to provide context of why it's important to talk about it. Although I wish I could, I would be lying if I said that I could guarantee the people in this room and listening from afar that they will not be involved in litigation in their careers. Statistically, even with absolutely best practices, the likelihood of being involved in or adjacent to a lawsuit at some point is probable. We can't deny the reality that litigation can affect any doctor, but there are things you can do to mitigate the risk and to start proactively making records that can provide a defense if one ever occurs. Being sued most often has absolutely nothing to do with you as a provider or with your treatment and more with litigation culture. No matter where you live, you have seen the billboards, so you know that there is a growing societal perspective that whenever anyone has experienced an unfortunate outcome in life, they may be entitled to significant compensation. And so the number of lawsuits filed every year continues to increase in every state, and this includes medical malpractice. In the most cynical view, the increase in med mal cases is fueled by patients seeing an opportunity for personal financial gain, even if they don't actually think you did anything wrong. In other cases, the plaintiffs are well-meaning people who have had a difficult time processing or accepting the reality of their condition or outcome. Perhaps they misunderstood the prognosis. Maybe they misunderstood the likelihood of success of a treatment plan or procedure. Often, I've seen it can be easier for grieving family members to direct their emotions or frustrations at a treater rather than the circumstances. And in some instances, litigation is the result of legitimate error. I, like most people, have the utmost deference and respect for doctors. Many of your patients regard doctors with such deference that they view you almost like gods, incapable of making mistakes. But as you well know, doctors are humans, and the demands of medicine have never been greater, so mistakes can happen. If you make a mistake in your practice, it is not the end of the world. But avoidance is never going to help it. In fact, there have been studies performed repeatedly that have shown that where a patient feels that their doctor is transparent, they are less likely to sue. Where a patient describes their doctors as evasive or refusing to acknowledge a mistake, they become significantly more likely to commence litigation. And this is consistent with the fact that the likelihood of being faced with litigation is not necessarily based upon the treatment or the grievousness of the outcome, but on the patient's perception of your treatment. Okay, so now that I've explained the harsh realities of the inevitability of litigation, I can tell you that there's some good news. Medical malpractice cases are unlike other types of civil litigation. They're complex, and they are difficult. I can tell you that many of the lawyers you see on billboards are not equipped or will turn down medical malpractice cases unless it is an absolute home run because they are so difficult and so complex. Things like slip and falls or car accident cases are relatively routine, and they often come with quick payouts. To establish a case of medical malpractice, a plaintiff's attorney has to invest in expert witnesses. I can tell you because I pay the bills, some of these experts charge well over $1,000 an hour. So plaintiff's attorneys are not incentivized to file medical malpractice suits unless they believe they're legitimate. And that's good for you because it serves as a natural deterrent. Not every attorney is out there soliciting med mal cases, and they will decline them if they don't feel that they are equipped in the medicine. On the adverse, medical malpractice defense attorneys spend their careers learning the medicine so that they are particularly equipped. In circumstances when we have cases filed where it's clear that the plaintiff's attorney didn't understand the medicine or didn't work up the case, we can usually get quick dismissals on the merits before it ever becomes a major issue. This is a global point that should go without saying, but you can't necessarily deter anyone from suing. I have seen family practitioners who were absolutely shocked because a long-time patient who they had a wonderful relationship brought a suit. However, bedside manner does matter more than you think in avoiding lawsuits. Likeable doctors who present as trustworthy and transparent and compassionate to their patients are so much less likely to ever be sued. And I'm sure you each practice like this without being told, but know that the extra efforts you put into bedside manner and communication will not only increase patient satisfaction, but will dramatically reduce your exposure to being sued. So let's get started. I have a little PowerPoint for you guys just so you can follow along. Now I'm going to give you guys a few-minute crash course in the law school definitions of medical malpractice and tort law because I think it's important to understand what makes up these claims and how to defend them so that you can start to see them as you practice. To understand the premises of med mal, it's important to know the burden of proof. The plaintiff or the person bringing the lawsuit has the burden of establishing all of the elements of the case with reliable evidence. This means it's the job of the plaintiff to put forth the evidence, not just merely claims or complaints, that some sort of negligence has occurred. Once they're able to do that, the burden shifts to us as the defense to assess what sort of negligence may have occurred and what things we can do to defend that. Importantly, legal authority in Florida and virtually every state has clear law that states that just because an injury has occurred or just because a negative outcome has occurred, that does not implicate negligence. There are elements of a negligence claim that must be established. just because something terrible has happened it doesn't mean that anyone was negligent. If someone dies on an OR table of a routine procedure that doesn't mean there was negligence. Most often when there is a negative outcome the patient will immediately consider litigation but that absolutely does not mean that they can meet their burden of proof to actually carry it out. All right and so let's talk about those elements of medical negligence so that you can you can understand them. These are the four elements that must be proven by any plaintiff if they want to survive past the initial phases in a medical negligence case and the four elements of negligence are duty, breach, causation, and harm. In layman's terms this means that you must have first owed a duty of care to the patient or the person suing. This is usually not disputed in med mal cases because if someone is your patient there is a relationship equivalent to a duty of care. However if you drive by the scene of an accident and don't pull over to stop someone to stop and help someone who is injured you don't have a duty of care because you have no relationship or obligation to them. Once that duty element is established they must be able to prove that you breached that duty meaning that you did or failed to do something that was required under your duty of care to them. Next if they can prove both duty and breach a plaintiff must be able to prove that the breach or the failure to do something proximately caused the plaintiff's injury. And the final element of harm means that there must be some actual injury that can be proven. So harm that the plaintiff has actually sustained. It can't be speculative. It can't be something that may happen in the future. Each one of these elements is required to establish a medical negligence claim. So if a plaintiff is unable to prove any one of these four elements the claim fails. That means for example there is no negligence just because someone was hurt if you did not own a duty of care like the example of a bystander passing a car accident. Similarly if you did have a duty of care and the patient does incur an injury there is still no negligence if they can't prove that you breached a duty that was required of you by doing something wrong or failing to do something. And proximate cause is a major element where med mal defenses are often formed. Even if you had a duty and even if you did something wrong and even if the plaintiff was actually injured but it cannot be convincingly shown that your breach or your conduct proximately caused that injury the claim fails. A common example of this occurs in surgical scenarios and sort of helps to illuminate it. An orthopedic surgeon has a duty of care to their plaintiff. Let's say they are performing a tib-fib fracture repair. During that surgery the plaintiff, the surgeon actually makes a mistake in repairing the fracture but the plaintiff dies in the operating room due to an unforeseen reaction to anesthesia. The orthopedic surgeon owed a duty of care. They were performing orthopedic care and repairing a fracture and even if they breached that duty by botching or making a mistake in a surgical procedure but the actual harm or the plaintiff's death was caused by an anesthesia interaction, proximate cause fails. So you can have a duty, you can make a mistake but if they can't prove and the burden of proof is strong on this that there was a clinical correlation between the outcome and your conduct you can defend that case. And finally even if there was a duty and a breach if there's not actual harm the case also fails and this is pretty common in a no harm no foul type example. If you prescribe a patient the incorrect medication and this does happen sometimes and they go home and they take it. You had a duty to them to prescribe the correct medication. They did in fact take the incorrect medication due to a mistake that you made but luckily they were not affected by it. So they take the wrong medication, they don't sustain any symptoms or injuries, the mistake is caught, they change back the medication and everyone lives out their lives. Even though there was a clear mistake there was no sustainable injury that can be proven. So we're not allowed, the law doesn't allow plaintiffs to bring cases for inconveniences or for fear of injury. They must be able to actually prove that something happened to them and that it was approximately correlated to the duty and the treatment rendered by that doctor. And this also means that within, I mean hardly any circumstances a patient only treating with one doctor. So often when there is a medical negligence case they will initially bring in every single provider who has ever treated that patient. We are able to at the very early stages go through the elements of the negligence claim and what the harm is and decide who is actually liable if anyone in this case. We are often sued in cases where ten doctors are named in the pleadings. Within the first month we can get eight of them out because it can be shown that those aspects of care, those specialties had nothing to do with the underlying injury or the medical negligence claim. And this is just usually the result of sloppy lawyering on the other side. So when they believe that there's been medical negligence they'll take a patient's file and they'll look at every doctor that they see and they'll name them. So it doesn't mean that it is the end of the world if you are named in a medical malpractice case. There are many ways that you can be dismissed immediately or that if you are tipped off that this may happen with a notice of intent your counsel can reach out to them and explain listen there's absolutely no way you're going to be able to establish these elements of negligence and it's not worth your money to bring the claim so please dismiss them. And they will most of the time unless it's a grievous case of or unless it's a grievous case of negligence where they actually believe that you are implicated. And before I bore you to death with law school definitions I want to go over the first element of duty with a little more detail because this one is the most important to your practice. Your obligation or your duty to your patients is based upon the applicable standard of care. In medical negligence or med mal cases standard of care are the most common three words uttered by either side throughout the course of litigation. But your standard of care is based upon the circumstances. By legal definition standard of care is evaluated by the way that a reasonable person with the requisite knowledge would have acted under the circumstances. So clearly the standard of care for a layperson is much different than the standard of care for a doctor. But even among different doctors and different specialties the standard of care varies. So it's important that you are aware of what standard of care applies to you so that you can make sure that you're always falling squarely within it. Essentially the standard of care for doctors is based upon the current standards of practice accepted by the medical community for your particular specialty or practice. But there is no bright line rule of what you are required to do or not required to do. It would probably be easier if there was a guide that said in this circumstance you must do this. But of course that's not how medicine works. You each practice with discretion and that is absolutely acceptable. Just know that when you are making decisions you want to make sure that if someone else was evaluating it could they ever argue that it was outside the accepted standard of care for your practice. As long as you can argue and there can be experts on your behalf that say yes this was within the standard of care the case is always defensible. It's important to realize that medical malpractice hinges on the standard of care because then you know what you are obligated to. If you are ever placed in a bad situation you know exactly what they will be evaluating. They will be having medical experts look at your records to try to find some way that it could be argued that you departed from the standard of care. So if you are aware of the standard of care you can practice proactively in a way that no one can ever argue that you fell outside those lines. In almost every medical malpractice case that I have ever handled the case goes pretty much like this. The plaintiffs will hire an expert to say that there was a departure from the standard of care. Plaintiffs attorneys often work with a handful of doctors who will testify to just about anything. So the defense attorneys to beat these claims have to find a distinctly qualified defense expert to cite to the guidelines or to cite to the accepted standards and say no this actually was within the standard of care for these reasons. We're often successful on this because if someone, if a plaintiff's attorney hires a orthopedic surgeon to say that a cardiac procedure fell outside the standard of care and the defense hires a double board certified cardiac surgeon, their opinions on the standard of care are obviously more authoritative. And so we can sometimes get out of those cases before they ever are brought to a jury and certainly without paying a settlement because it's clear that more qualified experts who know your practice can testify and attest to the fact from your records that you fell within the standards of care. I always advise my clients that if you are trying to avoid a litigation, keep the standard of care in mind. You cannot always anticipate someone who is litigious but sometimes you can. If you have a patient who is very problematic in a way that you think that they may be thinking about litigation, routine complaints, sometimes people even make the threats. Start evaluating your full course of treatment with that patient from the other side. What will they try to say was my departure from the standard of care and what can I make sure is included in my records so that it is absolutely certain that I complied at all times? Okay. And here's a couple of discreet legal issues that affect medical malpractice that I want to discuss. Caps on damages for medical malpractice are something that were very common a few years ago. And it's something that's very beneficial for doctors. For some medical negligence cases in certain states, as a result of tort reform, there were caps on medical damages. For example, a few years ago in Florida, non-economic damages, things like pain and suffering, were capped at $500,000 no matter what the injury. It could be a death claim and it was capped at $500,000. This served as a natural deterrent for plaintiffs to want to bring med mal cases because they couldn't get crazy high million-dollar verdicts. This was actually enacted in states like Florida and other states to create sanctuary states where the doctors were less likely to be sued. Unfortunately, states like Florida have overturned the caps on medical economic damages for med mal cases, sort of circumventing this sanctuary state concept. And each state varies on what their caps are or what their limitations on damages for med mal cases are. So it's important to know what the current law is in the state where you practice. But here in Florida, as soon as those caps were overturned by the Supreme Court, we saw a marked increase in medical malpractice cases. Because now, regardless of the injury, there was no limitation on what could be asked. This is not necessarily good news, but it is important to know because you can anticipate which states will have higher propensities for med mal cases based upon their tort reform laws and their damages caps. So in Florida, for example, since we're here in Florida today, with the overturning of the cap on medical economic damages for med mal cases, we saw a marked increase

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