Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Learn How to Mitigate Hospital and Personal Risk by Participation in a Simulated Negligence Lawsuit

Randall C. Jenkins, JD Adjunct Associate Professor and Coordinator of Insurance and Risk, University of Florida HSC Self Insurance Program
4-3-3 Malpractice Claims Impact on Healthcare Organizations The Joint Commission and healthcare facilities recognize that the failure to improve patient safety will expose organizations to significant human and financial loss. For example, “the average 250 bed hospital spends the equivalent of the cost of a new MRI unit, between $300,000 and $1 million annually, defending medical malpractice lawsuits, not including settlements and judgments” 1.  In addition to the emotional impact lawsuits have on employees and the hundreds of thousands of dollars organizations spend defending a medical malpractice lawsuit, healthcare organizations also face the harsh financial reality that juries see hospitals as a faceless entity with the ability to pay large judgments because of insurance coverage. Hospitals pay claims in 50% of court cases brought while doctors pay in 30% of cases. Jury verdict research indicates median plaintiff awards against hospitals are about $500,000 1. Although healthcare organizations have become more aggressive with a variety of new protocols to reduce hospital errors, such as emphasizing evidence based medicine, pharmaceutical bar coding, conducting a root cause analysis for unexpected outcomes, and using an electronic medical record, humans are imperfect by nature and mistakes happen. Research has indicated, however, that hospital injuries can still be reduced by 20-70% 2. Hospital trial simulation provides healthcare organizations a unique, proactive, and concrete employee training tool designed to specifically help healthcare providers, administrators, and other employees reduce hospital injuries resulting from human mistakes. The goals of a hospital trial simulation are to help increase participants’ awareness of the legal system and to improve job performance by highlighting how the legal system scrutinizes a variety of treatment decisions, from documentation to policy implementation, made daily by healthcare professionals. By participating in a medical malpractice trial simulation, participants experience the different factual and legal components necessary for a lawsuit to reach a jury and learn the lessons of a medical malpractice lawsuit without having to endure the stress, cost and uncertainty of an actual lawsuit. As the cost of healthcare continues to increase, physicians, nurses, and healthcare executives have a growing need to understand the pieces of a medical malpractice lawsuit. Healthcare providers and executives who understand the legal process are in a much better position to evaluate and manage the hundreds of thousands of dollars organizations expend in legal fees and litigation costs when forced to defend the care provided. A trial simulation teaches providers and healthcare executives the importance of quickly learning the facts driving a lawsuit so the healthcare organization can make an informed decision to either defend the care provided or attempt an early settlement. As healthcare organizations develop competency based health management education programs, they will increasingly look for ways to integrate various program elements in exercises and activities that develop leadership and competence in areas such as analytical thinking, communication skills, impact and influence, and strategic orientation 4. Ultimately the medical negligence trial simulation allows providers and healthcare executives to learn the black letter law impacting healthcare while also gaining a practical and first hand understanding of how a lawsuit actually develops. Once physicians, nurses, and executives understand the complexities of a lawsuit, they will be in a better position to manage their own personal risk, their organization’s risk, and better understand and manage the significant legal expenses involved in being a defendant in a lawsuit. Simulation Set-Up: Session 1 Part-A Assignment of Duties Participants learn the various pieces of the medical malpractice lawsuit puzzle, which prepares them for their role in the culminating mock trial conducted during Session 2.  After a brief overview of the medical-legal process, the participants choose or are assigned as advocates for the plaintiff or the defendant, or to serve as a potential member of the jury. Depending on the number of participants, roughly one third of the participants advocate for the plaintiff, one third of the participants advocate for the defendant and the remaining serve as jury members. The participants who advocate for the plaintiff know from the beginning of the session that they will need to present a given scenario in the light most favorable to the injured patient and also have the burden of proof to convince the jury of the merit behind the patient’s lawsuit. The plaintiff team is also responsible for preparing the plaintiff’s witnesses for testifying at trial. The plaintiff’s witnesses include family members of the plaintiff, and the plaintiff’s nursing expert who support the plaintiff’s position that the hospital’s nursing staff violated the prevailing nursing standard of care. The plaintiff team also has to equally divide the various trial responsibilities of a plaintiff’s lawyer. The participants who advocate for the defendant know from the beginning of the session that they need to present facts in the light most favorable to the defendant. Although the defendants do not have the legal burden of proof, they have the responsibility of providing the jury with a plausible explanation that refutes the plaintiff’s negligence claims.  The defendant team is responsible for preparing the defense witnesses for testifying at trial. The defense witnesses include the nurses, physicians, and other healthcare providers who cared for the patient, and the defense nursing expert who will testify that the care provided by the hospital employees met the prevailing nursing standard of care. The defense team also has to equally divide the various trial duties of a defense lawyer. Finally, the jurors, at the beginning of the mock trial, participate in the process of jury selection whereby both the plaintiff and defense teams ask each member of the jury questions to identify juror bias for or against one party of the lawsuit based upon the prospective jurors responses to preprinted questions designed to elicit areas of juror bias for or against either the plaintiff or defendant. Although the jurors have less pre-trial preparation work than the plaintiff and defense team members, they have more post-trial work. The jurors have to stay after the trial until they reach a verdict or reach an impasse. Additionally, during the post-trial debriefing session, jurors have to explain which arguments they found either convincing or unpersuasive after sharing their verdict with the participants.   Session 1 Part-B Preparing for Trial with Pleadings and Depositions After assigning each participant to a team, the participants are given a different piece of the trial puzzle to read, digest, and incorporate into their version of the case. Although attorneys working on an actual lawsuit would not necessarily have such a predictable or controlled flow of information, the use of selective pleadings and depositions establish enough information for each side of the lawsuit to feel that they have the material necessary to present a convincing case to the jury. During the first session, each participant receives a copy of the complaint and session time is spent describing how its factual and legal components mirror the essential components of any lawsuit. Each participant also receives the defendant’s answer to the complaint and the instructor follows the same process of explaining the legal and practical tactics to follow when responding to a lawsuit brought against a healthcare organization. Depositions are tools that both plaintiff and defense lawyers use to prepare their case for trial. They are a pretrial discovery mechanism in which one party’s attorney asks oral questions of the other party or of a witness for the other party (6). Depositions are sworn testimony conducted before trial of treating witnesses, such as Nurse Sally, factual witnesses, such as family members, or expert witnesses. Depositions allow each side to refine their case theory based upon the sworn testimony of the various players in the lawsuit. Next, the participants receive each deposition, which gives new facts for each side to weave into their case theory and also serves as a guideline for what each witness would say at trial because depositions are sworn testimony. Therefore, when asked the same questions, truthful witnesses should have the same testimony at trial as the testimony they had provided in their deposition. The development of the mock trial facts through depositions provide the opportunity to educate participants about the purpose of depositions and how to effectively give a deposition, because as healthcare providers or administrators they or their employees will likely have to give a deposition at some point in their career. Simulation Activities: Session 2 Part A: The Medical Negligence Trial Simulation After the completion of Session 1, 2-4 weeks are given for the participants to prepare for their role in the simulated trial. The first part of session 2 begins with the mock trial. The instructor serves as the judge for the mock trial and rules on issues of law, overrules or sustains objections made by the attorneys, and instructs the jurors regarding their roles and responsibilities. After both the plaintiff and defendant legal teams conclude their questioning of the prospective jurors, each side requests that the biased jurors be removed from the jury panel.  The judge grants or denies their requests if the requesting team sufficiently establishes that the juror in question could not be impartial. However, the jurors who are struck do not know they were removed from the jury until the lawyers rest their case and the jury begins deliberations. By not disclosing which jurors are struck until after the trial, all jurors remain attentive during the trial. The plaintiff team begins the mock trial with an opening statement that introduces their version of the case facts and law for the jury. The plaintiff team selects one person from their team who has the responsibility of delivering the opening statement. Next, the defense team follows the same process.  After both sides present their opening statements, the plaintiffs begin presenting their case-in-chief since they have the burden of proving that the alleged damages occurred because the hospital employees failed to meet the prevailing standard of care that would have been provided by other hospitals under the same or similar circumstances. After the plaintiff completes the direct examination of a witness, then a member of the defense team has the opportunity to ask the witness any other questions necessary to present the jury with a complete picture of the witnesses’ testimony during a process known as cross-examination.  The process of the plaintiff team calling witnesses necessary for their case-in-chief, followed by a member of the defense team conducting a cross examination of the same witness, continues until the plaintiff rests its case. Once the plaintiff rests its case, the defense has an opportunity to conduct a direct examination of the defense witnesses. The defense team follows the same procedure as the plaintiff team and one member of the defense team serves as the defense lawyer responsible for conducting the direct examination of the defense nursing expert whose testifying role is played by another member of the defense team. After the defense lawyer completes the direct examination, a lawyer from the plaintiff’s team has the opportunity to cross examine the defense witness to make sure that the jury has a complete picture of the witnesses’ testimony.  During the cross examination of witnesses, both plaintiff and defense lawyers effectively use the witnesses’ prior deposition testimony to impeach those witnesses who changed their sworn testimony from deposition to trial. Simulation Activities: Session 2 Part B: Jury Verdict After deliberations, the jury reaches a verdict. The jury’s decision allows participants to see how legal principles learned in Session 1 practically play out in the trial. Comparative fault and patient responsibility as well as adequate medical record documentation are important concepts that healthcare providers and executives   can see first-hand how the jury uses such evidence to reach a verdict for or against the hospital. Advocates for both sides also learn the delicate balance of asking a jury to consider assigning fault for a patient’s injuries to the patient even when the hospital may have some responsibility. If the issue of comparative fault is not handled appropriately, the jury may become angered and assign more financial responsibility to the hospital. Of the simulated mock trials conducted at the University of Florida and Shands, participants typically describe the experience as one of the best continuing education learning activities they have had. If you would like more information regarding the simulated lawsuit experiential learning activity, you may contact me at 273-7006. References: 1. The Top Ten Malpractice Claims. Hospitalconnect.com. September 9, 2004. Accessed February 18, 2007 2. Leape LL: Error in medicine. JAMA 1994; 272:18511857 3. Commission on Accreditation of Healthcare Management Education.  Criteria for Accreditation (Proposed Revisions By Standards Council). June 12, 2006. , Accessed February 18, 2007 4. National Center for Healthcare Leadership.  Competency Integration In Health Management Education. Chicago: NCHL, March 2006. 5. Shahood, J, NME Properties, Inc. v. Rudich, 840 So.2d 309. 6. Black H, Nolan JR, Nolan-Haley JM. Black’s Law Dictionary.  St. Paul: West Publishing Co. 1990.