| Progress Notes | October 2007, Volume 2, Issue 4 |
Who’s Watching Whom?
In these days of electronic and Internet surveillance, plaintiffs and defendants alike must be acutely aware of the types of information available to the general public and how that information may be perceived. Sources such as Internet Web pages, MySpace, and traditional surveillance techniques are all available for gathering evidence to substantiate or refute allegations of damages in a medical malpractice action.
Generally, uncovering a “smoking gun” through surveillance is the exception and judges are hesitant to allow such information to be seen by a jury, often finding it to be more prejudicial than probative. Surveillance evidence can be effective as a pre-trial negotiating tool or as noted in the cases below.
Relentlessly Fighting Fraud
Recently, three of our members were sued along with a hospital and seven other doctors. The plaintiff claimed an inability to walk or stand as a result of the defendant’s failure to timely diagnose her spinal abscess. Because the expert reviews were problematic, every codefendant physician not insured by The Doctors Company settled out, leaving only our members and the hospital.
Our aggressive defense included surveillance, which was undertaken while discovery was under way. We videotaped the plaintiff walking and getting into a car unassisted. In a second deposition, the plaintiff testified again that she was unable to walk or to get into a car unassisted. Our defense lawyers drafted a motion to dismiss for fraud. The judge dismissed the plaintiff’s case, telling the plaintiff that it was the worst case of outright fraud she had seen in 22 years on the bench.
A Resourceful Defense
In a recent California case, our member anesthesiologist was sued as a result of an upper extremity injury allegedly caused by the patient’s right arm falling off an arm board for a short time prior to the commencement of surgery. As a result, the plaintiff alleged loss of the use of the upper extremity as well as loss of the ability to enjoy the frequent vacations she customarily took. Surveillance videotape was introduced showing the plaintiff putting up an umbrella with both hands, carrying her dog, carrying groceries, and steering her car—all with her allegedly useless right arm. As to the loss of enjoyment on her frequent vacations, the plaintiff testified that while she could still go on vacation, she had to force herself to have a good time. During trial, photographs downloaded from the plaintiff’s MySpace page revealed that since the alleged injury occurred, she had taken trips to Italy, France, and the Caribbean, and she appeared to be having the time of her life. The result: a defense verdict.
Physicians should not, however, be lulled into a sense of complacency. Keep in mind that plaintiffs’ attorneys are every bit as ingenious as their defense counterparts at ferreting out information. One fertile source of information is a member’s Web page. Mission statements, treatment goals, or photos that can be misinterpreted as a guarantee of outcome must be carefully scrutinized—and members should be aware of privacy issues when posting photos, descriptions of procedures, or patient testimonials.
Rx for Patient Safety: Real Solutions = Real Protection
We’ve earned our place as the industry’s patient safety leader by providing our members with the highest quality protection. That protection includes delivering practical solutions that support your practice and help you reduce risk.
Our latest tool for promoting clear communication is Ask Me 3, a free educational program from the Partnership for Clear Health Communication. The program is designed to encourage patients to participate in their health care by asking their physicians three questions and understanding the answers they receive:
- What is my main problem?
- What do I need to do?
- Why is it important for me to do this?
The benefits of this program include improved communication and the patient’s increased responsibility for his or her health care outcomes. For more information, call us at (800) 421-2368, extension 1243, or visit www.AskMe3.org.
Lois Kemp, MA, RN, CHT,
Patient Safety/Risk Management Interventionist
Progress Notes is published quarterly by the Claims and Patient Safety Departments of The Doctors Company.
