Wanted to relax for the weekend, but didn’t really have the opportunity.
After trial got out on Friday, I took the train home, got in a 30 minute nap, then went to work a 12 hour shift on Friday night. I got home at 11:30 the following morning and took a nap until about three in the afternoon. Did some work that was piling up and spent a little time with the family. Went to sleep about 10:00 PM and was back up at 6:30 AM to do a 24 hour shift in the rural ED where I moonlight. After my shift, there was a meeting with hospital administration. That got over with about 10:30 in the morning. I got home at a little before noon. Looked in the mirror. The dark circles under my eyes talked to me. “Go to sleep” they said. “A little nap won’t hurt anything.” I took a quick shower, changed into a suit, and drove into the city. Arrived at 1:15 PM — about fifteen minutes before the afternoon session of the trial was supposed to start.
An infectious disease expert had testified during the morning. When I arrived, I discovered that the Grinch had suddenly changed his strategy. Previously, he wasn’t going to call me as a witness. Now, the Grinch told my attorneys that he was going to put me on the stand that afternoon. According to Vinny, the Grinch’s case was going so poorly that he was taking a chance putting me up on the stand hoping that I would say or do something that hurt us. “Remember, this is our case to lose,” he said.
Both sides were worried about the hospital’s expert surgeon. He had a reputation as a “wild man” and refused to be prepped for his testimony. The hospital attorneys attempted to go over what he would say and he wanted no part of it. Told them he was going to get up on the stand, tell his story, and leave. All the defense attorneys were afraid that he would ramble on about something and would blurt out something to hurt our case. Several people said he needed to be “reigned in.”
Wonder what they say about me.
As the hospital attorney led the surgeon through direct testimony, he came across as a very good witness. He noted that the patient’s diagnosis was a difficult diagnosis to make because it was “hidden from the examining eye.” He was very complimentary of my care, stating that I “responded to multiple life-threatening conditions that could have taken the patient’s life in minutes.”
When asked if the standard of care required me to contact a surgeon while the patient was in the emergency department, he replied “absolutely not.” He stated that if the patient had been brought to surgery when the plaintiffs were alleging I should have known the diagnosis, he would have died in surgery because his “heart wouldn’t tolerate it.” The patient had to be stabilized and I did a commendable job of doing so.
On cross exam, the plaintiff’s attorney brought out the fact that this expert never actually examined the patient and never took his history. His argument was that the family was in a far better position than the expert was to describe how the patient looked and whether I should have diagnosed his condition earlier.
The Grinch made a big deal about this theory, stating that the expert had “no direct observational evidence of the patient’s appearance.”
The expert replied “I have no idea what you mean by that.”
The Grinch scowled at him, turned to face the jury and sneered “yes you do” out of the corner of his mouth.
The expert stopped, pulled his glasses down over his nose, raised his eyebrows, and stared for several seconds at the Grinch. The Grinch turned around to look at him and you could see that the Grinch got a little uneasy. Several of the jurors rolled their eyes and shook their heads. Definitely didn’t gain any points with that remark.
The Grinch also noted that this expert did not look at the patient’s previous medical records.
“You didn’t even take the time to look at the patient’s prior hospitalization records or the records from the physician’s office visit, did you?” The expert simply said “I didn’t need them to form my opinion about the care he received in the hospital that day.”
The cross-examination ended with the expert stating that by the time the patient had arrived in the emergency department “the horse was out of the barn” and the patient was probably going to die from his illness.
During the expert’s testimony, one thing that I noticed was that the more the Grinch tried to get the expert to say bad things about me, the more the expert began advocating on my behalf. The Grinch was trying to make me look bad through the hospital’s expert and the expert would have no part of it. You could see that the Grinch was starting to get stressed out, too. During breaks, the Grinch would pace up and down the courtroom and run his hands through his hair. Periodically, he’d stop and write something down on a legal pad. Then he’d go back to pacing.
The other physician being sued in this case couldn’t stand the sight of the Grinch. He told me several times that he just wanted to go up and strangle him. I kept telling the doc to stay calm. Things seemed to be going our way. The ultimate payback would be if the Grinch lost this case.
On redirect exam of the surgical expert, the other doc’s defense attorney asked if it was reasonable to say that a resident should not have full knowledge of all subjects in his training because a resident’s knowledge is expected to grow during the residency. The judge flipped out. He stood up and said “Outside, OUTside, OUT-SIDE!” I don’t know what the big deal was. Several of the jurors even sat there with wide eyes and mouths agape at the judge’s outburst.
After the lawyers came back from their meeting, I asked Vinny what the problem was. He looked me in the eyes and said “Look … this is a show. You leave real medicine at the door when you walk in this courtroom.” That whole concept just rubbed me the wrong way. Besides, he still didn’t tell me what the problem was other than to say that the judge did not like the other doc’s attorney at all.
During the expert’s questioning, I noticed some of the tricks that the attorneys played on the witnesses. One was repeatedly asking a bunch of easy “yes or no” type questions such as
“Would you agree that hypotension can be a sign of sepsis?”
“Wouldn’t you agree that antibiotics are generally needed to treat sepsis?”
“Someone in sepsis doesn’t necessarily have to have a fever, do they?”
“Isn’t it true that at some point the patient’s condition needed to have surgical intervention?”
The witnesses would get lulled into a sense of complacency by agreeing with all these easy questions. Once the witnesses’ guard was down, then the attorney would slip in a tricky statement that the witness would not agree to, hoping the witness wouldn’t catch it and would just say “yes” again.
“Then wouldn’t you agree that Dr. WhiteCoat should have called the surgeon as soon as the patient arrived in the emergency department?”
If the physician does catch the trick and says “no,” then the attorney just nonchalantly continues along with other questions and tries to slip the concept in under a different context later. If the physician doesn’t catch the trick, then the attorney either jumps all over the statement or saves it to use later.
Both sides did this. In fact, Vinny was kind of happy about it when he was able to get the opposing experts to admit things that they had denied in their depositions. He kept a little notebook with some of these admissions and made red marks with the word “closing” next to the statements he planned to use in his closing argument.
One of the other tricks that the attorneys use to try to establish the standard of care in the mind of the jury was to repeatedly ask if it was “reasonable” to do certain things. For example,
“Would it be reasonable to get a surgical consult in this patient early in the course of his emergency department visit” or
“Would it be reasonable for a surgeon to see the patient first and then order the tests that the surgeon wanted?”
Naturally, everybody wants to sound “reasonable” so they tend to agree with the questions.
The trick is that the attorneys then infer that because these actions were not done, the defendant physician acted unreasonably.
According to Vinny the response to a question of whether or not it would be reasonable to perform some action is “Yes, it would be reasonable to do so, but it is certainly not required by the standard of care.”
The Grinch really wanted to start my testimony that afternoon and you could tell that he was trying to rush through the rest of his re-cross exam. Louise said that was because the surgeon was killing him on cross-exam and the Grinch didn’t want the jurors to go home with the testimony ending on such a bad note. Alas, by the time testimony was finished, the judge said that it was too late to start new testimony and dismissed everyone for the day.
We needed to go back to Vinny’s office for a little while just to brush up on my deposition and the types of questions I would likely be asked. During the walk, I told Vinny and Louise that it was probably better that my testimony didn’t go off that afternoon since I only had about an hour of sleep in the previous 36 hours. Louise stopped walking, put her hands on her hips, and gave me this “what the hell is wrong with you” look. Then she sarcastically said “Well, I guess it’s a good thing you’re just telling me about this noooowww.” She ended the word “now” with a little “wuh” sound at the end to emphasize her point.
I don’t know which was bothering me more at the moment, the fact that I looked like I was wearing goth makeup the whole afternoon and no one noticed, or the fact that I felt like taking the chewed up pen out of Louise’s pocket and sticking it where the sun probably didn’t shine.
I am so bringing some salt to court tomorrow to dip the end of her pen in it.
“On redirect exam of the surgical expert, the other doc’s defense attorney asked if it was reasonable to say that a resident should not have full knowledge of all subjects in his training because a resident’s knowledge is expected to grow during the residency. The judge flipped out. He stood up and said “Outside, OUTside, OUT-SIDE!” I don’t know what the big deal was.”
I don’t know your state, but in many states it is settled as a matter of law that a resident is a licensed professional and so held to the same standard of care as any other licensed professional of that field and discipline.
There’s arguments both ways on this issue. Some, like Vinny, see this as ignoring the real way medical training works. Others note that, if residents are not capable of performing at the professional level, then they should not be licensed and should not be permitted to perform any care at all unsupervised. Hospitals walk a delicate line here: in court they argue residents are doctors with training wheels, but to regulatory agencies they argue residents are full-fledged professionals.
Either way, the other doc’s lawyer really should have known the law on that, and it’s understandable that the judge would be irate about it, since the lawyer essentially tried to make an argument prohibited by law.
Thank you for the explanation.
In most states Residents arent fully licensed. Most states actually have a “training-licenese”. Especially 1st year residents aren’t even able to be considered for full licensure until they have completed Step 3 of the United States Medical Licensing Exams (USMLE). A lot of residents don’t get full licensure for times like WC’s.
That’s part of why first-year residents are called “interns.”
Nonetheless, most courts I’m aware of ignore the nomenclature and look to what they’re actually doing. If at any point the intern/resident is acting without total supervision, then it’s quite clear the hospital is treating them like a professional and so the law will, too.
Interesting, although in some states residents don’t get licenses until as late as their third year of residency.
“we’ll be right back after this commercial message.”
Can’t wait for the showdown.
Yes or no question.
Is this possible:
You are a resident, a few months out of medical school working the night shift in some department with no attending physician. Someone comes in with a condition that someone with 20 years experience has never seen because it is so rare. You don’t figure it out. The patient dies.
Can you get sued for this?
No, residents aren’t fully licensed right out of medical school. See post above. And all residents are supposed to work under a fully licensed attending physician.
I do not work in the medical or legal field, so I don’t know how any of this works. I do have a story that seems to contradict what you say.
I had a coworker whose wife was a resident in a rural ER. She would be there with just a few nurses. The physician was about an hour drive away.
One night one of those big blue church vans rolled and mutilated the crap out of a bunch of people during her night shift. The ambulances (yes, plural) bring in the folks that weren’t dead yet. Freaking disaster. Two of the people died because she decided she could save more if she let them go – she only had so many hands, limited blood, etc. I think another person passed away in addition to the first two she had to let go.
So is this even possible, or was I told some story to make their wife look like a bad ass?
I wonder if she could have had her ass sued for letting those two go.
Paul, you cannot ‘moonlight’ until you have obtained your license which will not be until you have completed internship.
Daniel is wrong. After one year of residency (internship) you can obtain your medical license. You can then go moonlight wherever someone will hire you, even if you are continuing in a residency program. It is usually not a very smart thing to do but many destitude new doctors have bills to pay.
My small-town hospital (14 beds, 3 ER beds) is considered a teaching hospital for Family Practice Physicians. We don’t get a lot of residents, but we get a few
For many many years, the a local Family Practice Clinic not only provided the Attending Physician to supervise these residents, but had the ER contract too.
It wouldn’t be unusual to have an FP resident as the night shift Doc, covering the ER, with his attending physician available via pager as described by Adam below.
peter read my post below about moonlighting. there is a lot the public doesn’t know and there are many regulations/restrictions on moonlighting.
o yeah i never said couldnt get licensed, i said most keep their trianing license to avoid this kind of law suit and if they want to get licensed need to complete step 3, don’t have to finish intern year for that either can take step 3 in the begining of your intern year if you want and get full license.
Can you be sued? Yes. Joe Blow can walk into small claims court tomorrow and file suit because he believes you killed Kennedy. The clerk will take his money, and serve you with a copy of the Complaint. The clerks aren’t empowered to reject it as long as the money is paid and it’s in the proper form (paper size, etc).
As long as there is a system for resolving disputes, there will always be an entry point where you can be brought in.
Not plausible. An unsupervised resident wouldn’t (shouldn’t) occur. And probably wouldn’t as they can not bill medicare/medicaid for their services.
Not plausible? I have multiple cases involving unsupervised interns and residents ordering medicines, making diagnoses, and performing procedures. Last fall I won a jury trial with a woman who coded when an intern gave her an antibiotic to which she was allergic.
Often, the “supervising” attending bills the insurer / government for the work they didn’t do.
As a (former) attending, I can state that (if your stories are true) an unsupervised intern should never be left alone to push meds. If they are, their attending should not only face the lawyers, but the feds for medicare/medicaid fraud.
Max,
residents do see patients, write Hist and physicals, order tests, make diagnosis and the like. 3rd year do a lot without an attending watching their every move. However as far as I know there is always an attending there and they are ultimately responsible for every patient in the ER. I dont know if they need to cosign every chart or not that may be up to states or repsective programs.
Adam: This is America. You can get sued for ANYthing.
Adam,
Bookwyrm is correct. However, as a resident you should never work completely unsupervised during the activities of your training.
Heh. Too bad you can’t put something a little more wicked on the pen tip, like sodium bicarbonate…very nasty…
Great post. I especially like the “lawyer’s tricks” comments.
As the Medical Director of a Child Abuse Clinic for 13 years, I testified in court over 1,250 times. And what Whitecoat says about the “tricks” of questioning witnesses is very true. Calling these techniques “tricks” puts the wrong slant on it, but that is not my point.
If you have never been in court (for ANY reason), print this out and save it. If you ever have to be in court (for ANY reason), read and memorize it. There are of course differences in law in the way “fact” and “expert” witnesses may testify, but tactics remain the same.
Those may be tricks, but they do not work. Long before this point, the befuddled jury has decided which party it liked better. In 80% of cases, it is the doctor, rather than a sleazy, slimy, greedy, plaintiff looking to fund the next few weeks of a crack addiction by the lawsuit lotto. The case was over upon the first seating of the selected jurors.
As stated before, the jury is not the best friend of the doctor in court. It is the only friend of the doctor. The defense team is looking out only for itself, which means, prolonging a risky trial to generate desperately needed billable hours. Their insurance payment is so skimpy, I do not even know how they pay overhead. That is why, the defense lawyers are so grumpy, and treat their client so shabbily. The doctor will know how it feels to be an HMO patient, and to get minimal care, with a bad attitude from the staff and the resentful, underpaid doctor.
i hope none of the patients on your sleep-deprived shifts suffered an adverse outcome because you were over-tired dealing with this nonsense.
Good afternoon,
A word about me: I am a trial lawyer, and I’ve defended physicians for ten years now. Also, English is not my first language, so bear with me.
I have another theory about the judge’s outburst. If I understood correctly, the attorney for the other defendant doctor was asking his own expert “if it was reasonable to say that a resident should not have full knowledge of all subjects in his training because a resident’s knowledge is expected to grow during the residency”.
This is such a badly phrased, obviously leading question that I would expect a judge to pounce on it, especially if that was the way the entire examination in chief was conducted. If you look at the question, there is barely any need for an answer. Before a jury, this type of question cannot be tolerated.
As for the tricks lawyers play on witness, I can vouch that they work, and very well as that. Remember that most of the time, witnesses are utterly unprepared to give testimony. The amount of preparation by Vinny and Louise is exceptional.
Amazing story. I will refer my future client to this site for reference!
For obvious reasons, I testify a lot. I was taught to answer questions “That is correct” or “That is not correct”, or “That answer requires some explanation.” The “That is” gives you time to think and avoid that particular trap.
One day for my class I’m going to have to make a list of “Stupid Lawyer Tricks” a la David Letterman. The really good attorneys, prosecutor and defense, don’t stoop to them, but there are plenty of hacks at both tables.
Ironic. The lawyer totally controls health care expenditures, and is choking the salaries of residents. These have been treating patients in the last two years of medical school, interviewing, diagnosing, and treating. They emerge with pretty good experience. Their salary is $50K a year. As residents, they are inexperienced clinicians, but still saving lives, treating people, and doing productive stuff that returns value 10 to 100 times the value of their salary.
Contrast that to the self-dealing lawyer. Never acted in the law in law school. Never even wrote a demand letter in anger. Gets a starting salary of $175K. Has to ask the secretary the format of a brief, if he ever gets to write one. This lawyer knows less about the law than a second year med student knows about medicine. When this associate does act in the law, he destroys $million in economic value. This is in contrast to the medical intern who generates $10 million a year in people saved from death and disability, who can work healthy again, and pay taxes.
This criminal cult enterprise has to be stopped.
“Louise stopped walking, put her hands on her hips, and gave me this “what the hell is wrong with you” look. Then she sarcastically said “Well, I guess it’s a good thing you’re just telling me about this noooowww.” She ended the word “now” with a little “wuh” sound at the end to emphasize her point.”
Jeepers. My blood boiled when I read this, and I’m just sitting in the peanut gallery. I believe I would have waited until I got to Vinny’s office, and then installed a new anal orifice in both attorneys…
As far as full licensure yes after you complete Step 3 you can get full licensure. A lot of residents wait until after residnecy to avoid the legal issues. However if you work in a field autonamous of an attending than you are held to full responsibilities of that position. When you get a license it is to practice medicine and surgery, so theoretically you could start operating on people. If something goes wrong and you have no formal surgery training you are screwed. Notice all those doctors doing laser treatment this and that to make an extra buck. they attended some seminar in the caribbean and got a certificate to do that. If something goes wrong and they don’t have dermatology training they could be up $hits creak without a paddle. NO RESIDENT IS ALLOWED TO WORK MORE THAN 80 hrs per week be it in the hospital or a grocery store. Moonlighting is for those who are lucky enough not to fill those 80 hrs in their week and have some free time to do other things. Not all residency programs allow residents to moonlight either. it may be in your contract that you can’t. Hope this clears some stuff up.
Daniel, you said: “NO RESIDENT IS ALLOWED TO WORK MORE THAN 80 hrs per week be it in the hospital or a grocery store.”
How often do they work 80 hrs/week? how often are they at the hospital for 24 straight hours with a chance to sleep? Is it possible that they sleep for part of that 80?
Do they usually do 80 hours for their entire residency?
I know that I am unable to think at work after about 10 hours. My mind shuts down completely. A couple of days of that and I’m fried. It is amazing people are expected to try and make life critical decisions like this.
That is the law no mroe than 80hr/week. This was actually instated not too long ago. There was a big whistle blower case where a resident at Johns Hopkins ratted them out for breaking this law.
New rules, in general, say that residents are limited to working 80 hours a week, in some cases averaged over four weeks, and can work for no more than 24 hours at a stretch. They are to be on-call no more than every third night, must have 10 hours off between shifts and one day in seven free of all duties. The standards are set by the Accreditation Council for Graduate Medical Education (ACGME).
sorry replied before i answered all the questions you had Adam.
Depending on the residency, some utilize their residents more than others. Surgery for one usually uses all 80hrs/week. Some places make sure the resident “averages” 80hr per week so might work 60 one week and 100 the next, as long as it averages out to 80/week. This is also why moonlighting can be difficult because while you work 60hrs this week and plan on 20 somewhere else, if your Program Director says hey I need you an extra shift next week you didn’t do all 80hrs anyway you would have to tell them no and if you are in a no moonlighting contract well, you can imagine.
Yes after 10 hrs some people are less able to perform, but this is why they implemented these regulations because of the critical mistakes being made. Also some residencies are longer thus the 80hr/week requirement doesn’t require them to have any less experience.
A couple of points:
1: Residents are trainee’s under an attending. I have never heard of them being considered at the same level of an attending. Every state I have ever worked in has specific resident licenses where they can only work under attendings in a supervised (the training hospital) setting. Yeah, bottom feeders will name residents and anybody else in the chart in a claim but the residents will typically get dropped unless acting beyond their scope of training. Perhaps at the end WC can talk about why the resident was in court but not the attending. Frankly, it doesn’t make sense
2: “Often, the “supervising” attending bills the insurer / government for the work they didn’t do”
How often is often Max? Do you have any clue or are you talking about or are you just once again spouting off uninformed BS. Ever heard of the primary care exemption? Sheesh.
not to mention with medical malpractice suits you very rarely sue one person, you sue EVERYONE involved in the patients care, ie hospital (administration and nursing staff), Doctors, and usually EMS if they were involved as well.
How often is often?
Not every attending. Not most. A tiny minority, to be sure.
But enough to warrant multiple Department of Justice Medicare Fraud Task Forces. Enough to support hundreds of false claims act suits and settlements every year.
I had one case where the residents hated the attending so much they kept a log of every fraudulent bill. And, no, they didn’t keep a long of primary care exemption work. They kept a log when they did the work and knew of the attending billing it himself.
Do you have any clue what you’re talking about? Are you seriously telling me billing fraud doesn’t exist?
Most of fraud allegations are pretextual lawyer oppression of doctors, telling them how to clinicalcare as a pretext to false confiscations. Always seek the personal destruction of the cult criminal. Do total attacks on all fronts. Destroy their lives to protect clinical care. To deter.
I appreciate and enjoy your series.. the sharing of your personal experience. You went through so much… as did your family.