Virginia law school gives doctors new perspective on liability litigation
■ Physicians experience the other side, hearing from plaintiff's attorneys and risk managers, while earning CME.
By Myrle Croasdale — Posted Nov. 13, 2006
Richard Rosenthal, MD, is passionate about the importance of understanding medical liability law, a transformation that took place while attending a novel six-session course offered by the University of Richmond School of Law in Virginia.
The school gives practicing physicians a chance to attend legal lectures with law students -- and earn up to 27 continuing medical education credits -- for participating in the Saturday classes, "Medical Malpractice Law and Litigation." A lineup of guest speakers, including plaintiff attorneys, especially adds to the doctors' experience.
At the course's culminating mock trial this spring, Dr. Rosenthal, chief of the allergy department at Inova Fairfax Hospital in Virginia and an assistant professor at Johns Hopkins School of Medicine, traded his physician perspective for that of a plaintiff's attorney, getting a taste for how lawyers tailor arguments to favor their clients.
He uses the knowledge he acquired to teach medical students how laws put teeth into the ethical principles medical schools teach. The experience ended up changing the way he practices medicine.
"I'm more aware of things I could be doing in my practice to take the construct of a negligence suit into account," Dr. Rosenthal said. "If I deviate from the standard of care, there has to be a good reason for it, and I document it. If you don't document it, you didn't do it."
The high cost of medical liability insurance concerns most physicians. The American Medical Association lists 21 states in crisis because rising liability premiums are forcing doctors to retire early, give up high-risk procedures or move. It lists Virginia among those facing increasing problems, but not in crisis.
University of Richmond's class was so successful that the school will offer it again in January.
During the spring semester, 17 physicians, 13 law students and two hospital risk managers attended the inaugural course. One doctor drove 150 miles round-trip to make the class.
The class, which cost $2,840, covered basics of medical negligence and the standard of care, what happens in a deposition, how expert disclosure works and what entails informed consent. Plaintiff attorneys, hospital risk managers and liability insurance executives were among speakers.
Some 30 physicians have said they are considering attending the next session, said Porcher Taylor III, program director and associate professor of the paralegal studies/legal assistant program at the University of Richmond School of Continuing Studies. Taylor came up with the idea for the class and is hoping to create an online version of it for CME credit.
Taylor said the chance to understand medical liability law better and to listen to experts in the field has made the class popular among physicians. Inviting doctors and risk managers into the class with law students allows participants to learn as much from each other as they do from the speakers, said course instructor Sean Byrne, a medical liability defense attorney with Hancock, Daniel, Johnson & Nagle in Richmond.
"There was some healthy debate between the law students and physicians," said Byrne, who developed the curriculum and taught the class. "It's so personal to some of the physicians. They may have been sued and felt they didn't deserve it. Even if they were vindicated, the stigma is still there. The law students' perspective is as a patient or family member, and they shared that."
Taylor said having lawyers and doctors learn side by side gave them the chance to understand each other.
"My hope was that this would help lessen the adversarial relationship between lawyers and doctors, that in some small way it would lead to more effective academic and professional relationships," Taylor said.
The course has gained national attention. Byrne has had calls from law schools around the country asking about duplicating the class.
Applying what they learned
Jewell Barnett, MD, director of the obstetrics and gynecology residency program at Riverside Regional Medical Center in Newport News, Va., took the class to sharpen his liability lecture series for residents. He has had three medical liability cases filed against him in his career, and each year there are one or two cases filed against someone in his department. He considers understanding medical liability law an essential part of physician education.
"Very few residencies have education on medical malpractice," he said. "It should be a required course, not just one or two lectures."
The class drove home one point in particular: "Documentation is an absolute, quintessential necessity to avoid malpractice suits," Dr. Barnett said.
Think like a lawyer
Dr. Rosenthal said the class made him more aware of the difference in how lawyers and doctors think.
"Doctors are trained in a paradigm of advocacy," he said, while lawyers work in an adversarial mode. "The doctor is not prepared for that; that's not his battlefield. The physician has to learn this new paradigm to protect himself in a negligence claim."
Understanding differences can prepare physicians better to deal with the legal system, Dr. Rosenthal said.
Acting as the plaintiff's attorney in the mock trial offered Dr. Rosenthal valuable insight into the legal system.
The mock case had enough information to construct a strong legal argument for either side, Dr. Rosenthal said. The case turned on the choice of surgical approach and the doctor's attentiveness to the patient.
Dr. Rosenthal's closing argument was so compelling that his classmates, including fellow physicians, gave him a standing ovation.
"I saw firsthand how convincing an argument can be made for the plaintiff," Dr. Rosenthal said. "I was struck by the role that presentation skills, if not theater, play in influencing the jury."