Defending a Malpractice Suit: Lessons Learned

[[{"type":"media","view_mode":"media_crop","fid":"37896","attributes":{"alt":"psychiatric malpractice","class":"media-image media-image-right","id":"media_crop_31618068018","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"3757","media_crop_rotate":"0","media_crop_scale_h":"150","media_crop_scale_w":"115","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"float: right;","title":" ","typeof":"foaf:Image"}}]]I was sued for psychiatric malpractice when a medical inpatient I evaluated had fallen out of a 10th-floor window of a general hospital. I had a 4-year roller-coaster ride of fear, hope, hard work, anxiety, and detachment. I became anxious because of the lack of knowledge about the legal process and uncertainty of the consequences. For the 4 years, I worked very hard and studied every word of the records, consultations, and depositions. I spent up to 80 hours preparing for the response to a report drawn up by the plaintiff’s psychiatrist.

I found myself professionally alone. My goal in writing this article is to pass along the lessons that I learned to my fellow psychiatrists. The names and dates have been changed for the privacy of everyone concerned. Any resemblance to a living or deceased person is unintended and occurs solely by chance.

April 15, 2005

A nurse from the hospital medical floor called me at 7 AM. “Please don’t come for follow-up with Mr Kulik. He died early this morning by jumping out of a window,” she said. She hung up before I had a chance to ask any questions.

My blood rushed to my temples giving me a throbbing tension. My legs and feet felt as heavy as lead. My strength sapped, making my legs feel achy. I was unable to speak and struggled to compose myself. I recalled the loving interaction between a son and his aging father. I remembered Mr Kulik’s wife sitting next to him in a chair. A patient jumping out of a window meant a “malpractice suit.” The thought weighed on me as I stood clutching the phone-all I heard was the loud dial tone. I called the hospital back, but there was no additional information other than what I had received from the nurse.

At 9 AM, I received a call from the nursing administrator, “Dr Malhotra, there will be a debriefing at 11 AM today. Everyone involved in the care of Mr Kulik is expected to be there. That includes the administrators, medical and nursing personnel, cleaning crew, and security personnel.”

We met in a conference room. The night shift nurse had visited the patient during her hourly rounds. At 4:20 AM, she helped him to use the toilet and return to his bed. At 5 AM, she noticed his empty bed. The window in his room was open. She saw something on the rooftop of an adjacent building, 6 floors below. She called the security guards. They confirmed that the “something” was Mr Kulik. The police took the body away for autopsy.

All hell broke loose in my mind. What did I miss? What did I do wrong? Should I have given a different medicine? Was the dose inadequate? Did I evaluate him completely? Was it a suicide? Did his room- mate throw him out of the window? Was it a murder? How would it affect my practice? Would I lose my license to practice medicine? Would the hospital take disciplinary action? Would I be jailed? Most of these fears and doubts were due to lack of knowledge about the legal facts and the process.

Three days earlier: April 12, 2005

Mr Kulik was an 85-year-old retired grocery store owner. His pulmonologist admitted Mr Kulik through the emergency department (ED) for chronic obstructive pulmonary disease that was not responding well to treatment. Mr Kulik was confused in the ED, and his son reported that Mr Kulik suffered from bipolar disorder.

April 13, 2005

Mr Kulik’s son requested a psychiatric consult for his father on the morning of April 13, 2005. I had just arrived in the hospital when I got the message; I was in the medical unit within 15 minutes. The attending physician and the son were standing outside the patient’s room. The attending physician had finished his rounds and before leaving said, “He’s all yours.”

Mr Kulik’s son shook my hand. He smiled and said, “I am so relieved to see you, I hadn’t expected a psychiatrist to be here so quickly.” The nurses had told him that it could take a day or two before a psychiatrist would come. He informed me that his father had been taking, and was doing well on, bupropion and extended-release divalproex as his maintenance medications; however, he had recently run out of the divalproex.

I asked why Mr Kulik hadn’t had his prescription refilled. Mr Kulik’s son explained that his father was buying medications from a Canadian pharmacy because it was less expensive; he was waiting for the meds to arrive when he had a relapse.

Mr Kulik was lying on his bed hooked up to IV fluids and oxygen therapy. His wife sat on a chair. Mr Kulik was Eastern European and I am Indian, so we had difficulty in understanding each other. I talked to Mr Kulik for 5 minutes, but he kept turning his head and looking toward the door of his room while uttering, “Men . . . there . . . were . . . men . . .” I asked more questions to clarify what he was saying. His expression remained blank, and he gestured with his expressions toward the door that opened into the corridor.

The son tried to intervene, but I wanted to evaluate the patient’s mental status with no outside influences. I finally inferred that the patient was not a reliable historian and seemed to be having visual hallucinations. I requested that his son accompany me to a conference room. For the next half hour, I asked many pointed questions because the history from the son and the mental status did not match. The clinical picture of visual hallucinations the previous night along with inappropriate affect and difficulty in communication made me think of “delirium.” The son had mentioned, “relapse of bipolar disorder due to stopping of drugs on which Mr Kulik had been stable for many years.”

I asked multiple questions to arrive at a diagnosis. My queries revealed past episodes of paranoid psychosis, depression, irritability, and grandiosity. Mr Kulik had been admitted to hospitals twice. Initially, the diagnosis was paranoid psychosis. The diagnosis was later changed to bipolar disorder following a frank manic episode. My diagnosis was bipolar disorder, manic/mixed based on the history of symptoms, treatment, and response to treatment. I continued his bupropion, and alprazolam prn, which had been started by his attending physician.

I ordered a small dose of divalproex ER 500 mg because Mr Kulik had respiratory problems. I wanted to avoid any respiratory depression. I also ordered aripiprazole to control his psychotic symptoms. I called the nursing station that evening and again in the morning to ask about the patient’s respiratory state. I ordered a progressive increase in his divalproex dosage.

April 14, 2005

I spent 25 minutes with the patient, his wife, and the nurse. Mr Kulik’s wife and the nurse stated that Mr Kulik seemed to be getting better. During the interview, he showed slightly lively affect.

April 15, 2005

I received the dreadful phone call. Questions were frantically rising in my head. “Where did I go wrong? What did I miss? What is going to happen next?”

I had heard that if you talk to anyone about the case, the opposing attorney could call him as a witness. “Do not talk to anyone,” I anxiously whispered to my wife and the office manager, as if we were engaging in a shadowy and illegal deal. I was waiting for the guillotine of the malpractice suit to drop.

There were lonely walls of silence around me. If any colleague said, “I heard about the incident,” I reacted with panic. I quickly said, “I’m sorry I can’t discuss this but thanks for asking.” How desperately I wanted to take him to a corner and tell him how scared I was, and say, “Please tell me that everything will be all right.”

Whenever I talked to anyone, it was with guilt and anxiety. I was distraught at the thought of breaking the law. I was scared about a lawyer’s question under oath: “Have you talked to anyone about this case?” A malpractice suit is a tort and not a criminal action. However, I did not understand all the details. I was scared of making mistakes. I did not know what would be a mistake. Therefore, I was afraid of every action.

One year passed

I prayed that the situation would not deteriorate; but the guillotine dropped. I received a certified letter; it declared that the plaintiff was suing the hospital and me. There was an accompanying statement from a psychiatrist who believed that the psychiatric management had not been up to par. The psychiatrist who gave the adverse psychiatric opinion was a fellow psychiatrist whom I had known for many years-we had attended social events and laughed at jokes together. I kept cursing him. Ouch! Of all people!

The legal process

The legal rituals started by my filing Form C (3), uniform interrogatories to be answered by defendant physicians in medical malpractice. I had to respond to questions about my contact with the patient.

I went to the record room to get Mr Kulik’s records. I read his medical record and highlighted important points. I secured the policy documents of the hospital. These materials included nursing care on medical floors, use of restraints, and the bylaws of the Department of Psychiatry. I studied them and answered Form C (3) questions. Form C (3) became a central document for me. Consistency is the hallmark of a credible witness, so I decided that everything I said would be consistent with the information I had provided on the form.

A lawyer was assigned to defend me. I started receiving charts of past hospital admissions and outpatient services. I was asked to read them and respond. I did whatever the attorney’s office asked me to do. “Why were all the past files sent to me?” I did not have them before treating Mr Kulik. I asked to meet the lawyer and the malpractice insurance representative. We met in a posh office in an office building. At the time, they had not yet read my form C (3); after they had read it, the exchange went like this:

“Do you remember the case?”

“Yes.”

“Why?”

“You never forget a suicide.” I looked straight into their eyes.

“Good.” Both of them smiled at each other.

“Your Form C (3) is one of the best I have seen so far,” the insurance executive said; the attorney nodded his head in agreement.

Later on, I asked for more face- to-face meetings. I was furious because I could not have any more meetings with the lawyer until a few weeks before the trial. (Two years later, the attorney revealed that the insurance company did not autho-rize further meetings. The attorney charged by the hour and my peace of mind and emotional health was not of concern to the insurance company. That was my first taste of “service rationing” from my malpractice carrier.) All involved gave depositions, and there were lengthy briefs from our specialist and plaintiff’s consultant psychiatrist.

I spent 80 hours of studying and tearing apart the report written by their psychiatrist. Two things caught my eye:

1. I had written the diagnosis “bipolar disorder, manic mixed” because I was not sure of the type. I had not put the slash between the words manic and mixed. The slash would have conveyed my impression of not being sure of “Manic or Mixed.”

2. There was no comment in my notes about suicidality of the patient. The patient had fallen from the 10th floor. “That was a big omission,” I thought.

I devoured whatever I could find about suicidality and bipolar disorder. The first breakthrough came when I read the “Medical Liability Alert” newsletter. I noticed something: “It is not a crime, not to document a finding; it is criminal not to have asked and investigated.” The son gave me a history of bipolar disorder in his father. I had seen an “acutely psychotic patient,” which had made me ask Mr Kulik’s son about hopelessness, depression, manic episodes, and a history of suicide. We had talked for half an hour and the son had denied any suicidality in his father and his family.

I told my lawyer that my weak point was my lack of documentation of my suicide questions and suggested that when he deposed the son, he bring on record that I had asked about suicide. During the son’s deposition, my attorney asked him, “Did you deny a history of suicidal attempt or talk by your father and the rest of your family.” The son responded, “Yes, that is true.” This proved that although my records did not show any mention of suicidality, I had taken a detailed history from the son, and it was negative for suicidality. That was a big relief.

Help came from my secretary. While typing a letter to the lawyer, she asked, “Harish, why didn’t you ask the patient directly about suicide?” “His affect was very inappropriate, and it was difficult to maintain contact with the patient,” I responded. “What do you mean by those words? I don’t understand.” she said. To explain myself, I mumbled, “Men . . . there . . . were . . . men . . .” and I looked away from her with no eye contact and flat facial expression.

She said with relief, “Now I understand why you didn’t ask the patient questions about suicide. He was incapable of answering your queries. You should let the jury see that expression too. The jury will know why you didn’t ask details of the history from the patient.” Accidentally discovering how to communicate an abstract issue to the jury was a big break for me.

Once all the depositions were complete, we wondered whether the case would go to court.

A period of waiting

There were periods when my anxiety escalated. I found myself remaining quiet at the dinner table, looking into space. My jovial countenance disappeared; the usual easy smile fled from my lips. I struggled to maintain composure during that sad period of my life. Often engulfed by tension, I used the following “system of comfort” to reduce the stress:

Whenever I found my shoulders tightening or my legs aching, I did relaxation exercises, and I talked to myself out loud about accepting the worst and moving on. When I thought of going to jail, I countered with, “The worst is that I will go to jail. Well, Gandhi went to jail. If I have to, so be it. Murderers start a new life after incarceration. I will do that too.” I did not realize that I hadn’t broken any laws, and there was no chance that I could go to jail.

When I thought about losing my medical license, I told myself, “There are many people who are not doctors. They live full lives. I will open a 7-Eleven store.” My mantra became, “I will cross the bridge when I see the bridge.”

Whenever I felt that I was projecting my anger onto my patients, I would say, “I am generalizing. It is unfair to the innocent others.” I repeated my concept of the serenity prayer so that I could focus on things that were in my control: “May I have the serenity to accept that I have no control over the outcome of the suit. Let me have courage to continue my practice, serve my patients, earn money, and prepare for the suit. Let me have wisdom that the lawsuit is not in my control, but my ability to fight is under my control.”

The trial

The attorney invited me to prepare me for the trial. “Do you have time?” he asked. “Yes, it is 2 PM,” I answered. He returned, “I did not ask what the time is. Your response should be ‘Yes, I have the time.’ If I ask, ‘What is the time?’ You should say, ‘2 PM.’ Do not give more information than what he [the opposing attorney] asks. You may be giving self-incriminating answers. I will be listening. If there is a fact that you need to clarify, I will ask later.”

Jury selection was completed, and the trial began in mid-2009. The plaintiffs had a lawyer, and the hospital and I (the defendants) had separate lawyers. A couple of days were spent going over the case with the judge to come up with an opening statement. The three lawyers agreed on the following statement: “Mr Kulik jumped out of the window and died.” The lawsuit would decide whether the hospital and the doctor did their jobs.

Engineers gave testimony about the window-its quality and manufacture. The patient’s sons and wife, the internist, the nursing director, and the nurse in charge gave testimony. The latter had visited Mr Kulik every hour that night up to 40 minutes before he was discovered missing. They all said that Mr Kulik had been improving, and there were no talk or behavioral changes to alert anyone of a problem. When it was my turn to take the stand, I was determined to remain consistent in my testimony. During the testimony:

• I kept a pleasant disposition in spite of my inner anxiety.

• I answered in lay language: I used my knowledge about bipolar disorder, suicidality, and interviewing, and I made sure that what I said did not conflict with the hospital chart, form C (3), and my deposition.

• I looked straight into the eyes of the lawyers, except when I was asked to explain to the jury; I then made direct eye contact with the jury members.

• The plaintiff’s attorney asked, “Why didn’t you ask Mr Kulik about suicide?” I explained and enacted the inappropriate affect, talk, and facial expressions of Mr Kulik. Thus, I showed the jury that Mr Kulik was not capable of giving reliable answers to my questions.

• I recorded the duration of my consult and follow-up visit on the hospital records. It was my practice for billing purposes and for Medicare audit. That habit proved to be a blessing. On the first day, I spent 55 minutes with the patient and on the second day, 25 minutes. The plaintiff’s attorney could not harass me about my short notes when he saw those numbers.

• My attorney confirmed that the statement “My father likes you; I will like to bring him to you after discharge from the hospital,” was made by the patient’s son during his testimony.

The jury deliberated. I was unsure whose side made more sense to the jury and worried about their decision. Finally the verdict came in: the hospital was found negligent because a nurse had seen a faulty window but did not report it and get it repaired in time. I was found not guilty of negligence.

I left the building. I wanted to celebrate by shouting with joy; however, I kept the dignity of a doctor. The family was standing outside in the parking lot. They saw me coming, the son approached me, and he said, “You are a good doctor, but we had to do this. He was our father you know.”

I wanted to yell at them and curse them for wasting 4 years of my life. I thought that they did not have to apologize, but they did. It was my turn to be gracious. I said, “I understand, but it was very hard on me.” All of them smiled wishing me goodbye. I moved on.

Eight days later, I received a letter. “Ordered that a judgment be and is hereby entered in favor of the defendant, Harish Malhotra, MD, and the complaint be and is hereby dismissed with prejudice and without costs.” The dismissal was “with prejudice,” which was significant. It meant that the matter can never be reinstated against me anytime in the future, for any reason.

The following are some lessons I learned from this suit:

• The service you have provided is the one that you document; if it is not documented, you did not perform it. Always record the amount of time you spent with the patient.

• Make it a habit to question all patients about suicidality, violence, and adverse effects-and document that you did; if they are present, document a rational reason for your decisions, actions, or inactions.

• In your record, use the word “because” frequently; it conveys that you are reflective and rational.

• Dictate records and work hard to improve your handwriting-it is embarrassing when you cannot read your own writing.

• Be sure that all collateral information and its sources are included in the record.

• A lawyer is your best friend during a lawsuit-you are very lucky if you get a good one.

• Please read about malpractice to learn precautions that you need to take and ways to deal with a malpractice suit.

Acknowledgment-I am thankful to the US judicial process for its fairness.

Disclosures:

Dr Malhotra is Clinical Associate Professor at Rutgers New Jersey Medical School in Newark. He reports no conflicts of interest concerning the subject matter of this article.