Malpractice From A-Z - Missouri State Medical Association

Document Sample
Malpractice From A-Z - Missouri State Medical Association Powered By Docstoc
					Series: Malpractice From A-Z
Four of a Series of Five


          epare
        Prepar
How to Prepare for the
                    Trial
Medical Malpractice Trial
by Gregory J. Minana, JD & Leslie P. Wallace, JD



As you work with your                                 Introduction
                                                      Introduction                                  on the outside of the case - reading
attorney to prepare for
               epare
             prepar                                        So, you’re going to trial. If you        medical records, depositions, and
a trial, you must                                     have reached this stage of the litigation     reports from your attorney. However,
remember that the jury                                proceedings, presumably efforts to            during the pre-trial and trial, your role
is now your audience.                                 settle the case on negotiated terms           is that of an active participant, and you
                                                      failed. It is possible that as you hear the   should expect to work closely alongside
                                                      word “trial” scenes of Perry Mason, L.A.      your attorney to prepare.
                                                      Law or Boston Legal (depending on your
                                                      generation) are running through your                             Prepar
                                                                                                    How Should I Prepare  epare
                                                      mind – perhaps a flurry of attorneys                  Trial?
                                                                                                    for a Trial?
                                                      uttering words you have never heard                Once your attorney informs you
                                                      before (better referred to as “legalese”)     that your case is going to trial, the
                                                      in front of a judge and jury; an attorney     actual preparation may begin as early as
                                                      looming over the witness stand firing         2-4 weeks prior to the trial date. By
                                                      questions at what appears to be a tireless    this point you have already had your
                                                      rate of speed; and the constant echoing       deposition taken, and have spoken at
                                                      of the judge saying “objection,”              length with your attorney about the
                                                      “sustained,” and instructing “the jury        strengths and weaknesses of the case.
                                                      will disregard that last statement.”          Now, being weeks away from a trial,
                                                           To calm you, there is good news          you should expect that the frequency
                                                      and there is bad news. The bad news is
                                                                                                    of conversations and contact with your
                                                      that all of the above does actually happen
                                                                                                    attorney will increase, along with your
                                                      during a trial, but the good news is that
                                                                                                    own participation.
                                                      it does not all happen that fast and you
                                                      will be adequately prepared beforehand.            Throughout this pre-trial period it
                                                      What you might see on television is           is reasonable to expect to talk with
                                                      intentionally condensed to depict an          your attorney almost daily. This is a
                                                      entire case in less than forty minutes,       medical malpractice case and the law
                                                      and a trial in less than twenty minutes.      requires that a medical expert establish
                                                      In the real world, your case will develop     the standard of care. Therefore, as
Greg Minana, JD, is a member, and
Leslie Wallace, JD, is an associate of                over the span of 1-2 years, and the trial     your attorney shapes and finalizes the
Husch & Eppenberger, LLC, in its St.                  will last 3 to 10 days. During the early      defense of the case, he or she will seek
Louis office. Husch & Eppenberger,                    stages of the case your role was more         assistance from you to explain how to
LLC, acts as outside general counsel
                                                      akin to a bystander because you were          best fit the medical analysis into the
to the MSMA.

476   Missouri Medicine Membership Directory   September/October 2006   Vol. 103   No. 5
legal framework. This involved period        are asked to make judgments based                 in court and have the opportunity to
requires patience on your part.              upon limited information. Generally,              defend yourself and “clear your name.”
     In preparation for this deposition,     it is appropriate to wear professional                 Finally, if a spouse, family member
you might have reviewed the patient’s        attire when you appear before the court           or significant other would like to offer
medical records, laboratory reports and      in any capacity. In doing so, you should          their support to you, they are welcome
related studies on the particular care or    wear a professional suit that you can sit         to attend any portion of the trial. (In
treatment at issue and explained to a        in comfortably for several hours at a             fact, the trial is open to the public and
relatively medically sophisticated           time. It is also preferred that your suit         anyone can attend.) However, the
audience (the attorneys) how and why         be in a dark or neutral color that is not         same rules of attire, conduct and
you provided the specific care and           a distraction to the court or jury. The           demeanor that apply to you, apply to
treatment to the patient. Similarly in       key is “distraction” – you do not want            them. There are both pros and cons to
preparing for trial, you will assist your    anything about your clothes, jewelry,             having your spouse or significant other,
attorney in presenting diagrams and          hair or anything else to distract the             attend the trial. On one hand, having
literature that supports your position.      jury’s attention from the evidence at             them at the trial displays a visible
At this point, one to two years worth of     trial.                                            support system for the jury to see, and
discovery (sharing of information                  Often the greatest statement you            this can make it harder for the jury to
between the parties) has taken place,        can make in your case is when you are             find against you. On the other hand, it
and your attorney will depend on you         not even speaking. Your demeanor,                 is not helpful if you are unable to
to assist her in assembling this             what the jury observes throughout the             maintain your focus, unable to speak
fragmented information into a                entire trial, is critically important to          candidly, or if your family member(s)
compelling story. You and your               the outcome of your case. The pointed             will be a distraction for the judge or
attorney will work together to tell this     truth is that if the jury likes you, while        jury. Often it is advised that a family
story. You will have to tell the story so    you are not guaranteed a win, it will be          member only attend the voir dire,
that it is medically accurate, and your      much, much harder for them to assess              opening statement, and closing
attorney will tell the same story so that    liability against you.                            argument, but this is a decision that
it is appealing and persuasive for the             At all times you should appear              you can discuss in detail with your
jury.                                        professional, confident (but not                  attorney.
     However, as you work with your          arrogant) and relaxed. It is important
attorney to prepare for a trial, you         that you watch your facial expressions                    Will
                                                                                              What W ill The Evidence
must remember that the jury is now           because the jury will be observing to                     Trial?
                                                                                              Be at Trial?
your audience. Therefore, you should         see how you react to unfavorable                       Depending upon the venue (the
know that while your medical expertise       testimony regarding the case. If you             physical location where the case is
is still a necessary component of the        show signs of anger, irritation, or make         tried), you will learn the actual trial
case, it is how you explain this expertise   any emotional outburst, you may                  date several months to several weeks in
to the jury that is critical. Generally,     permanently damage your credibility              advance. Regardless of when the actual
the jury is not medically sophisticated,     with the jury. Unfortunately, these              date is set, the Court will require the
and therefore may not be persuaded by        cases are not always about what is right         parties to have a “pre-trial conference.”
“medicalese.” As you work with your          or fair. While you may genuinely feel            Only the attorneys attend this
attorney, keep this in mind.                 that you did everything correctly, there         conference. As its name dictates, this
                                             are people on the other side of the case         conference takes place prior to the trial
What Do I Wear?                              who contend that you did something               (usually the morning of the trial, or as
     Medical professionals do not often      wrong. The jury has to make a decision           early as two weeks prior to the trial)
think about their clothes or the details     between two opposing positions, and              and is an informal meeting at which the
of their appearance. Andre Aggasi once       they are going to look for any and               opposing attorneys meet with the judge
said, “Image is everything.” He was          everything to assist them in that                to discuss matters of evidence and
only partly wrong, because image is          decision. You do not want to appear              narrow the issues that will be tried.
something. Whether we like it or not,        angry or defensive at being “dragged             One of the primary goals of the pre-
our appearance says a lot about us and       into court.” Rather, you want the jury           trial conference is to educate the judge.
is even more important when people           to see you as someone eager to appear            Even though the judge may be somewhat

                                                         September/October 2006   Vol. 103   No. 5   Missouri Medicine Membership Directory   477
478   Missouri Medicine Membership Directory   September/October 2006   Vol. 103   No. 5
familiar with the case and the parties,      by preventing the jury from hearing               heard by a jury of their peers. In your
and may have already made decisions          irrelevant information, and it protects           case, however, this does not mean that
with respect to different issues             the integrity of the trial, by ensuring           the jury will be made up of 12
throughout the duration of the case,         that the proper issues are being tried.           physicians, but rather it will be
the judge is also giving the same            For example, if it is elicited during             comprised of 12 ordinary citizens so
attention to hundreds of other cases.        your deposition that you were sued in             you will need to educate them on the
     You may recall that in your             a prior malpractice suit on an issue              medical issues.
deposition you were asked numerous           unrelated to the present suit, then it                 During voir dire, both attorneys
questions by the opposing counsel            would be improper for the plaintiff’s             may have the opportunity to ask each
inquiring into various facets of your life   attorney to mention the prior                     member of the jury pool (or panel)
– these questions may have included          malpractice suit to the jury. Simply              various questions that will assist both
your family history, education,              stated, the jury might be unable to               you and your attorney in determining
licensure, work history, other litigation    distinguish a prior malpractice suit from         whether this person can be fair and
and ultimately your expert medical           the current lawsuit, and this                     impartial in listening to your case. For
opinions. It is possible that you            information would only serve to                   example, your attorney may ask the
questioned the relevance of this             prejudice the jury against you, and               following: “Has anyone present ever
information. However, you should keep        further impair your right to a fair trial.        sued a doctor?” If a person answers
in mind that the information discovered      Hand in hand with what evidence should            “yes,” then depending on the discussion
in your deposition may have been             be heard, the motions in limine effectively       thereafter, this response may be a reason
discoverable - properly discussed in a       narrow the issues that will be argued at          to challenge whether that potential juror
deposition, but it may not be admissible     trial. Your attorney will place before            is be unable to be impartial towards
at trial.                                    the judge the specific questions which            you based upon their prior experience.
     By this point in the litigation, the    are at issue and thereafter contend that          There are two types of challenges or
parties have shared a great deal of          only the evidence that is relevant to             strikes that an attorney may make
information, including your deposition       those issues should be admitted                   against any person in the jury pool: the
testimony. This information was                   In addition, the pre-trial                   first is a “for cause” strike, where a
generally, with some exceptions,             conference is also the time in which              person is removed from the jury pool
discoverable, which is defined as            your attorney will advise the judge of            based on an expressed bias; and the
“reasonably calculated to lead to            the witnesses you expect to call, and             second is a “peremptory” or
admissible evidence.” Admissible             any other unique evidentiary issues that          discretionary strike, for which no reason
evidence is that which is relevant to        will be applicable in your case.                  is needed at all, so long as there is no
the issues being tried and not overly                                                          manifestation of discrimination. In
prejudicial; and relevant information        Who W ill Hear My Case?
                                                     Will                                      Missouri a civil jury consists of 12
then is that which tends to prove or              The first aspect of trial is the             jurors and one or two alternates.
disprove a necessary element of the          selection of the jury. A jury pool is                   Your participation and role during
case. The overall goal is to ensure that     comprised of local citizens who have              voir dire is very important. This is one
the jury only hears relevant                 responded to a jury summons and have              of the few times that you will have an
information that will allow them to          gathered at the court to serve as a juror         opportunity to directly influence the
fairly assess your case.                     in a criminal or civil case. Each pool            jury. Your attorney will look to you for
     Determining what evidence the           consists of approximately 40                      assistance in observing the jury’s
jury should hear is one of the primary       prospective jurors who are thereafter             demeanor to determine if you have any
functions of the pre-trial conference.       questioned by the judge and/or the                initial feelings about a particular
It is likely that your attorney will file    attorneys to determine whether they               prospective juror. You may observe a
one or more motions in limine. This is a     are suitable and/or competent to hear             person smiling and nodding at you,
formal request that your attorney will       your case. This process is formally               which may indicate sympathy and a
make to the judge in order to prevent        known as “voir dire”, a French term               person that you may want on your jury.
the plaintiff’s attorney from introducing    which literally means to “to speak the            On the other hand, you may observe
certain information at the trial. This       truth.” The Constitution states that              someone glaring at you, which may
type of motion ultimately protects you,      every defendant shall have their case             indicate a strong bias against you. This

                                                         September/October 2006   Vol. 103   No. 5   Missouri Medicine Membership Directory   479
might be someone that you would                       fact, this is information that is privileged   off guard. If you are called, it is
suggest be removed them from the jury                 and protected. Nonetheless, your               important that you remain professional
panel.                                                attorney is experienced in litigating          and courteous and be prepared. You
                                                      medical cases, and based upon this             should not make any facial expressions
Prelude to the Trial:
Prelude                Trial:                         experience will be skillful in anticipating    indicating surprise or shock, nor should
The Opening Statement                                 the theories and arguments of the              you be argumentative. Above all,
      After the jury is selected, each                plaintiff’s attorney and preparing you         remember who your audience is – the
attorney will make an “opening                        for many of the “what ifs” that may            jury. You are now an active participant
statement” to the jury. The plaintiff’s               occur during a trial.                          and should focus on educating the jury.
attorney will go first, followed by your                   One important consideration and           It is permissible, and even advisable, to
attorney. These statements are usually                strategic advantage that the plaintiff’s       answer every question (unless your
a short summary that serves as an outline             attorney has is the order in which he or       attorney makes an objection) while
of what the attorney expects the                      she will call their witnesses. At a            facing the jury and making eye contact
evidence in the trial to show. This is                minimum, the attorney will usually             with them. The jury will make the
often referred to as the “big picture.”               present the plaintiff to testify about         ultimate decision about your liability,
Generally these statements should not                 their treatment and injuries; plaintiff’s      so regardless of when you tell your
be argumentative, as the jury has not                 expert(s) to testify about the standard        story you should make them understand
been presented with any evidence to                   of care; and perhaps family members            why you did what you did for the
consider. However, do not be surprised                and friends to testify about the extent        patient, and how the patient’s injury or
if your attorney makes an objection                   of damages the plaintiff has suffered.         damages are unrelated to your care and
(request to the court to prohibit a                   Additional witnesses may include the           treatment.
certain statement) during the opening                 treating doctor(s) who could testify
statement of the plaintiff’s attorney                 that some portion of the treatment             B. Preparing Yourself Emotionally
and vice versa, if the attorney feels that            was below the standard of care, and                 A medical malpractice trial can
the statement is bordering on argument.               finally, you.                                  take an emotional toll on you, and it is
It is common for attorneys to push the                     As a defendant in the case you            therefore advisable that you prepare
line between argument and statement.                  should understand that you are probably        yourself emotionally for many factors.
                                                      the most important witness and the                  The trial itself may be very long,
Round 1:                                              plaintiff’s attorney will almost certainly     lasting several days to several weeks
                 Case-in-Chief
Plaintiff’s Case-in-Chief                             ask you questions at the trial, whether        depending upon the number of medical
     After your attorney gives the                    during his or her case or your attorney’s      issues being tried as well as the number
opening statement to the jury, the                    case-in-chief. The content of this oral        of defendants. Your attorney will not
plaintiff’s attorney will present his/her             exchange with plaintiff’s attorney would       be able to present your case until the
case or “case-in-chief” to the judge                  be very similar to your deposition, with       plaintiff’s attorney is finished; however
and jury.                                             the exception that he or she would not         you are expected to be at the court for
                                                      be able to discuss those subjects that         the duration of the trial. Even though
A. Presenting the Evidence                            were properly excluded during the pre-         you must remain attentive while the
     The presentation of the plaintiff’s              trial conference. However, your                jury is present, your attorney may
case may be a highly anticipated aspect               attorney may counsel you on a different        encourage you to bring reading material
of the medical malpractice trial for the              approach or demeanor for these                 or other work to do while the jury is not
defendant simply because of the                       questions.                                     present. (The judge is presiding over
unknown. While Missouri’s civil                            More often than not, the first time       many cases at the same time and may
practice rules require that the parties               you will take the witness stand is during      be required to take frequent breaks
continually engage in the sharing of                  your case (the defendant’s case-in-            from your case to handle issues that
information throughout the discovery                  chief), and the plaintiff’s attorney would     may arise in another case.)
and pre-trial process, there is no duty               thereafter question you. However, the               Potentially the most emotional
placed on either side to discuss exactly              plaintiff’s attorney may call you as a         factor is preparing yourself to hear
how they will choose to present their                 witness during his or her case in order        days, and even weeks, of sympathetic
respective case to the jury at trial. In              to surprise you and perhaps catch you          testimony from the plaintiff’s witnesses

480   Missouri Medicine Membership Directory   September/October 2006   Vol. 103   No. 5
which may evoke empathy from the               things, including care and treatment you           how long he or she has specialized or
jury and perhaps lead you to feel nervous      gave to the plaintiff, and why the plaintiff       received training regarding the medical
or anxious about your own testimony.           was not damaged by the treatment you               issues in the case, and the process method
In truth, medical malpractice cases are        administered, or, in the alternative, that         by which he or she developed his or her
hard on everyone involved. You may feel        the injury suffered by the patient was             medical opinion.
angry or frustrated that your medical          inevitable due to pre-existing conditions.              Finally, your attorney may have other
decisions are being questioned or              Your attorney will discuss any additional          independent witnesses, along with any
attacked, but do not want to react visibly     information that may be important to               other treating doctors. The treating
to what you hear, as your reactions may        your testimony in great detail so that you         doctors are sometimes the most
be misinterpreted. Moreover, the jurors        are well prepared.                                 important because they are often regarded
may become angry if they believe you are             After you have finished your direct          by the jury as independent and unbiased.
trying to unduly influence them through        examination, the plaintiff’s attorney will
your reactions. However, remember that         “cross-examine” you (take his turn to ask          B. Focus on Educating the Jury
you will have your turn to tell your story.    you questions). During your cross                       It cannot be emphasized enough that
                                               examination you may hear your attorney             when giving your testimony your audience
Round 2:                                       object to a question posed by the plaintiff’s      is the jury. Your focus should be to
                    Case-in-Chief
Defendant’s Case-in-Chief                      attorney. It is in the judge’s discretion          educate them concerning why you took
      After the plaintiff has rested           whether to overrule the objection                  the particular actions you did in regard to
(completed his case), it is your attorney’s    (requiring the question to be answered),           the care and treatment of the plaintiff;
turn to tell your side of the story to the     or sustain the objection (ruling that the          why you believed these actions were
jury. Remember that yours will be the          question should not be answered).                  medically necessary; and how the patient’s
last evidence that the jury will hear.               After your cross examination, your           injuries were indirectly related to your
                                               attorney may conduct a “re-direct                  treatment, or would have inevitably
A. Presenting the Evidence                     examination” where he or she asks                  occurred given the patient’s prior medical
      Similar to the plaintiff’s attorney,     additional questions to you. If your               history. While the stated theme
your attorney will present your case-in-       attorney chooses to re-direct, you should          throughout has been to remain
chief to the jury through witnesses. At        not feel that you made a mistake during            professional and courteous, it is a good
this point the jury has heard several days     your cross examination. Re-direct may              idea to also be energetic when you speak
of testimony intended to make the plaintiff    happen for several reasons, including,             to the jury. Remember that the jury
appear very sympathetic, and you appear        that you made a statement during your              represents the average lay person who is
less than competent. The plaintiff’s           cross examination that your attorney feels         probably unsophisticated in the area of
attorney had the strategic benefit in          needs to be further explained or clarified         medicine.
selecting its order of witnesses. However,     to avoid confusing or misleading the jury,              In order to assist you in preparing
having heard the testimony of the              or your attorney may want to reiterate a           for your direct and cross examinations,
plaintiff’s witnesses your attorney is able    strong and positive aspect of your case so         your attorney may suggest that you
to use your witnesses to persuasively tell     that it is the last thing the jury hears.          practice your examination before the
your story while rebutting any allegations           Along with your testimony, your              trial starts. Often, this practice is
previously made in the plaintiff’s case-in-    attorney will call an expert(s) to testify in      videotaped to assist you in seeing
chief. You have the strategic advantage of     your case as to the appropriate standard           yourself as the jury sees you and allowing
having the jury deliberate with your           of care, which in a medical malpractice            your defense team to critique your
evidence as the most recent in their mind      case means the degree of skill and learning        presentation.
      If you have not already been called as   ordinarily used under the same or similar
a witness in the plaintiff’s case, then you    circumstances by members of the                   W ill the Jury Be Guided in
will be called as a witness in your case to    defendant’s profession.2 Your attorney’s          Deciding My Case?
testify on your own behalf. This will be       question to the expert will focus on several           In Missouri the judge reads
your “direct examination.” Direct              things, including whether he or she is            instructions to the jury after the close
examination is where the attorney who          qualified to testify as an expert. With           of the evidence (your case-in-chief)
called that witness to the stand asks the      this, your attorney will question the expert      and prior to the closing arguments.
witness questions. The scope of your           about his or her specific knowledge               Jury instructions are essentially a narrow
examination will generally focus on several    concerning the medical issues in the case,        and specific explanation of the law.

                                                            September/October 2006   Vol. 103   No. 5   Missouri Medicine Membership Directory   481
These instructions are intended to                    or her closing argument he or she is         but most defendants want to be present
provide a detailed guideline that                     now able to state, “based upon the           for the verdict.
identifies the relevant law to your specific          facts presented, the evidence did show            At the end of their deliberation,
case, and directs the jury how to decide              x, y and z and therefore your verdict        the jury will complete the verdict form.
the case based upon the evidence they                 should be in favor of the defendant.”        The form requires the jury to write in
have heard. This is also known as                     The closing argument is generally longer     the name of the party in whose favor
charging the jury. The inclusion,                     and walks the jury in greater detail         the jury is deciding. If the verdict is for
omission, or modification of any                      through the evidence that was presented      the plaintiff, then the jury will also fill
instruction is argued by the attorneys                during the trial. Lastly, plaintiff’s        in a dollar figure for the total amount
and ultimately decided by the judge.                                                               of damages they believe will compensate
                                                      attorney is allowed to save some time
     The number of final instructions                                                              the plaintiff for the injuries alleged.
                                                      from his or her closing argument to
will vary based upon the number of                                                                 This dollar amount may be $0.
                                                      make a final rebuttal argument.
claims or theories that were alleged in
the case, as well as the number of                                                                 How Do I Know
                                                              Long Will Take
                                                      How Long W ill It Take
defendants. Generally these final                                                                  if I’m Liable?
                                                      for the Jury to Make a
instructions charge the jury not to                                                                     When the jury has finished
                                                      Decision?
assume facts not in evidence, specify                                                              deliberating and reached a verdict, they
                                                           After the jury has heard the closing
the number of jurors that must agree in                                                            will notify the bailiff or appropriate
order to return any verdict (for or                   argument, the judge will provide them
                                                      with the instructions and a verdict form     court personnel and be led back to the
against you), detail the requisite burden
                                                      which contains instructive language on       courtroom. The verdict form is
of proof (the obligation of plaintiff to
                                                      how to make their decision in                returned to the judge, and the judge
prove his allegations), define any
                                                      accordance with the evidence presented       will read the verdict out loud.
necessary terms used in the instructions
                                                      and the law. The judge will thereafter            In order for you to be held liable in
(one such term is “negligence” in a
                                                      dismiss them to “deliberate” (decide)        Missouri, at least 9 of the 12 jurors
medical malpractice case), ask the jury
                                                      the case. The jurors will leave the          must agree that the plaintiff’s attorney
to assess percentages of fault if there
                                                      courtroom and assemble into a nearby         presented enough evidence to show
are multiple defendants, and indicate
                                                      room where they will discuss the             that by a “preponderance of the
the amount of damages, if any, to be
                                                      plaintiff and defendant’s case among         evidence” you were liable for the injury
awarded to the plaintiff.
                                                      themselves until they reach a decision.      or damage to the patient. This
                                                      No party or witness is allowed to speak      particular burden of proof requires a
               Round:
The Final Round:
                                                      to the jury during this time.                finding that you were more likely than not
Closing Arguments
            Arguments
                                                           This process of deliberation is the     to have been medically negligent. There
     After the final jury instructions are
                                                      point in which the duties of the judge       is no mathematical inquiry involved in
read, each attorney will present his or
                                                      and the jury essentially come together.      this finding. If the jury finds you liable,
her closing argument to the jury. The
                                                      The judge is instructed to hear and          then judgment is awarded against you
closing argument is just that, an
                                                      decide the law and the jury is instructed    in favor of the plaintiff. But, with all
argument, whereby the attorneys argue
                                                      to decide the facts. In deliberating, the    hope, the verdict is returned in your
the facts and draw upon inferences
                                                      jury is deciding the outcome based           favor.
from those facts to persuade the jury to
make a certain decision. Put simply,                  upon the facts they heard at trial, and in
                                                                                                   References
                                                                                                    eferences
the attorney argues what conclusion,                  conjunction with the judge’s continuing
                                                                                                   This article is written by Gregory J. Minana and
or verdict, should be drawn from the                  interpretation of the law, both before               .
                                                                                                   Leslie P Wallace. Greg Minana is a member and
facts, or evidence, introduced into the               and during the trial. The instructions       Leslie Wallace is an associate of Husch &
                                                      are then fundamentally the judge’s final     Eppenberger, LLC, in its St. Louis office. The
trial.
                                                                                                   information contained in this article should not
     Similar to the opening statements,               way to ensure that the jury tailors the      be construed as legal advice or legal opinion on
the plaintiff’s attorney will go first,               evidence within the scope of the             any specific facts or circumstances. The
followed by your attorney. Unlike the                 appropriate law.                             contents are intended for general information
                                                                                                   purposes only, and readers are urged to consult
opening statement, however, where                          A jury may deliberate for less than
                                                                                                   their own attorney concerning their own
your attorney could only say what he or               an hour or for several days. You may be      situation and any specific legal questions.
she expected the evidence to show, in his             excused while the jury is deliberating,      2. MAI 11.06 [1990 Revision]                MM

482   Missouri Medicine Membership Directory   September/October 2006   Vol. 103   No. 5
                                                                                                            As I See It

Kansas City Blues:
Fighting the Insurance Cabal in Court
by William D. Soper, MD



Area physicians came to
Area                                  Introduction
                                      Introduction                                        Affiliates commissioned a professional
believe that the system of                  Kansas City area physicians filed four        survey to formally compare physician
providing          care
providing medical care had            class action lawsuits against health insurers       reimbursement in several midwestern
been dramatically and                 last year. Two were filed in Jackson                communities. The results were
harmfully altered and
           altered                    County, Missouri, and two in Wyandotte              astounding. It found that Kansas City
influenced in every way               County, Kansas. The physicians allege the           doctors were being paid less – much less
                        third
imaginable by outside third           defendant insurance companies have                  – than their counterparts in St. Louis,
parties – the insurance               engaged in unfair payment practices with            Des Moines, Topeka, Wichita, and
companies. It was in this             regard to physician billing, and anti-              Springfield. Physicians in St. Louis were
climate that physicians               competitive conduct that has wrongfully             paid 7% more than their peers in Kansas
determined they must work             depressed physician payments in the                 City; in Des Moines they were paid 29%
together and take action.             Kansas City area.                                   more, and in Springfield some 33.5%
                                                                                          more for identical E&M and CPT codes.
                                      Difficult Times to Practice in                      These inequities are even greater when
                                      Kansas City Area  Area                              one considers that overhead costs in these
                                           The Kansas City medical community              comparison cities are equal to or less than
                                      has long found it difficult to recruit              those in Kansas City. This means that
                                      physicians to join area practices. Although         Springfield physicians are taking home
                                      other causes may play a role, poor                  up to twice the income of Kansas City
                                      reimbursement for services is the most              doctors for the same services.
                                      commonly cited factor when physicians                     The survey also investigated whether
                                      choose to locate elsewhere. It is well              Kansas City patients and employers
                                      known that groups in competing                      benefited from these lower physician
                                      midwestern communities typically offer              payments. Surprisingly, it found that
                                      significantly higher salaries, often half again     health insurance premiums are not lower
                                      as much as market rates in Kansas City.             in Kansas City than in comparison cities.
                                      For example, Topeka cardiologists                   In most cases they were somewhat higher.
                                      recently offered recruits a salary $80,000          So, it seems, local physicians are being
                                      higher than heart doctors in Kansas City;           paid less not for the good of patients or
                                      and a Springfield surgical group outbid an          the benefit of employers, but for the
                                      area surgical group by $40,000 for a                profits of the insurance companies.
                                      graduating general surgeon. Given this, it                It seems as though insurance industry
                                      was apparent that physician peers                   profits set new record highs with every
                                      elsewhere are financially healthier than            reporting. According to its proxy
William Soper, MD, MPA,               their colleagues in Kansas City.                    statement released earlier this year,
is President of Mid-America
Medical Affiliates. He practices           Several months before the lawsuits             United Healthcare posted $1.6 billion in
Family Medicine in Kansas City, MO.   were filed, the Mid-America Medical                 gains (and paid its CEO $8 million a year

                                                    September/October 2006   Vol. 103   No. 5   Missouri Medicine Membership Directory   483

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:13
posted:8/27/2012
language:
pages:8