Welcome to Litigation

Abstract

It is a virtual certainty that every colon and rectal surgeon will be sued at least once in his or her career. The litigation process that ensues will exact a toll on you personally and professionally. To reduce your anxiety and frustration, you must become educated with the process, manage your expectations, understand the respective roles of attorney and client, and know what you can do proactively. Effective communication with your attorney from the outset through each stage of the litigation is imperative. The three stages of litigation include (1) initiation of the litigation process, by notice of an adverse occurrence, or record requests from a patient’s attorney, or service of the complaint; (2) the discovery process; and (3) the trial itself. You must prepare at every stage to achieve your best result. Evidence must be compiled early. The quality assurance and attorney work-product privileges exist to protect pre-litigation communications from disclosure, but only if the communications are pursuant to existing protocols or in anticipation of litigation, and are maintained confidentially. Accurate production of your medical records, especially with the prevalence of electronic medical records, can be troublesome and requires pre-existing procedures to assure complete and consistent responses. In discovery, your responses must include information known to you, your attorney, and information obtainable by reasonable inquiry to staff members or review of records. Your deposition, a recorded, legal, formal interview, is the single most important element of the discovery process. Thorough preparation is important. You must be familiar with the clinical information available to you when you treated the patient and which formed the basis of your diagnosis and treatment plan. At the trial, a jury will decide the facts of your case, including whether you were negligent, i.e., whether you breached the standard of care. The standard of care is what a reasonable doctor would do under similar circumstances. The jury will make that determination based on the evidence presented to them, most importantly your testimony and the testimony of experts. The jury will weigh the testimony of the experts and resolve conflicts based on the facts that each expert relied on. Be prepared to testify regarding the facts upon which your care was premised. The most effective way to discredit the opposing expert’s opinion is to disprove the facts on which it is based. You must be present and active at trial as you are your attorney’s most important asset in the courtroom. Knowledge of the process and how you can be proactive in your defense will both reduce your anxiety and frustration and affect your best result.

Portions of this chapter include material from Judicial Council of California Civil Jury Instructions (CACI), Nos. 200, 208, 219, 221, 501, 505, and 506. Permission to reprint CACI instructions in this publication has been expressly granted by the Judicial Council of California.