Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

About once every other month, I will present at a seminar for doctors and other medical professionals. They attend because because they’ve been sued, and they’re learning how to cope with their newfound role in the legal process. At one point in the seminar, a psychiatrist presenting on litigation stress will usually ask the group if the subject of lawsuits was ever covered during medical school. I don’t recall there ever being an affirmative answer. 

The lack of attention to litigation as a part of medical education is surprising, especially given that the chances that medical students today will be named in a lawsuit at some point in their career are astoundingly high. Every year, about 7.5 percent of physicians are named in malpractice suits. In some specializations, like general surgery, it is greater than 15 percent every year. By the time a physician retires, the chances of  having been named in a suit range from 75 percent to 99 percent, depending on specialty. When the facts of litigation aren’t covered in school, that leaves most doctors having to learn about it the hard way — by experience. Schools might wish or assume that, if doctors do everything right, then a suit won’t happen, but that is not the reality. And it is time for medical education to recognize that reality. Recent research shows that incorporating a mock trial as a part of physician training provides an effective way to teach the subject. Five physicians from UCLA’s Center for Advanced Surgical and Interventional Technology (Juo et al., 2019), put physicians through a mock trial training program and demonstrated that it significantly increased both physician knowledge and comfort. In this post, I’ll share these results and discuss the implications for schools and for anyone who works in medical defense. 

The Research: 

The UCLA team created the mock trial training for forty residents and attending surgeons. Using a case focusing on a missed diagnosis and delayed treatment claim, the exercise included both discovery and trial. They used a real fact pattern and an experienced physician role-playing the defendant, while medical malpractice attorneys acted in the roles of plaintiff and defense counsel. Attendees obtained hands-on experience learning about their roles in deposition and trial testimony as part of the larger litigation process.

Measuring the results, the team found that attending the workshop resulted in improved understanding of the elements of a claim, better comprehension of the do’s and don’ts in litigation, and greater confidence in having a deposition taken. It is also helpful that the participants were all learning this in the context of a sample case, not in the context of their real cases after having been named in a suit. 

Medical Schools Should…

Medical schools and other training institutions should consider adding litigation awareness and competence to the curriculum. The reasons for doing this relate not just to improved physician comfort or better litigation outcomes, but also to better medical care. The team explained, “It is especially important to enhance mental preparedness among the next generation of surgeons in order to minimize the increased costs and worsened patient outcomes associated with defensive medicine.” If litigation preparedness is to be added to the medical training regimen, then a mock trial exercise provides a focused, realistic, and even entertaining way to present it. The article cites a handful of institutions that have implemented mock trial programs and reported similar success. More should follow suit. 

And If Medical Schools Don’t…

Like the institutions of legal education, the parallel institutions of medical education can sometimes be conservative and somewhat slow to change. It is predictable that many to most medical schools will continue to operate as though lawsuits aren’t supposed to happen, and don’t happen if a doctor is doing everything right. To the extent that this form of denial continues, then physician organizations, professional liability insurers, and ultimately defense trial teams need to pick up the slack. Host a seminar, and make it interactive and informative. And most of all, deal with physicians in a way that assumes litigation is a necessary cost of doing business, and a reality that can be met with preparation and confidence rather than confusion and shame. 

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Other Posts on Medical Liability Litigation: 

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Juo, Y. Y., Lewis, C., Hanna, C., Reber, H. A., & Tillou, A. (2019). An Innovative Approach for Familiarizing Surgeons with Malpractice Litigation. Journal of surgical education, 76(1), 127-133.

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