Defense Law Insights

When a patient's unexpected outcome leads to litigation, healthcare organizations and providers enlist attorneys from a medical defense law firm. Here are top insights from Medplace's discussions with defense-affiliated thought leaders.

  • 00:10:11 - 05:10:11

    Jerrod Bailey 00:06

    imagine that if there's a lawsuit five years from now, like we got to produce something right, in, right, what do we have to produce? From the AI? Like, what do you what do you think we should be thinking about now? Like table stakes? Where do we have to produce


    Matt Keris 00:20

    the work? What should I be producing? It's, it's going to be very similar now. But more complex what healthcare professionals are dealing with in terms of the audit trail discovery. A lot of times, we all know this, it's standard practice point, as law firms are seeking the audit trail to find the aha moment where there's a records alteration after the fact, the audit trail was so that, and part of the problem with a lot of healthcare systems is that you're, they're buying a product that's, that's created for them. And they can either, you know, it's an evolving system, and no one really has their arms around it, they really don't know how to get some information, you know, people in internally move on. And then you may even, for example, get a new product. And the old EMR vendor doesn't want anything to do with the health care provider. They don't want to get involved in the litigation, if there's a real issue, they don't want to have to turn over their proprietary information, all those types of things, you could see that with AI, if it's truly an AI error, you can see similar to the audit trail, expensive discovery, I want to go in, I want to, I want to production of the of the audit trail, I want to, I want to know all versions that you use, I want to know the upgrades and amendments. And you may not be able to do that as a health care provider, because it's not yours. It's someone else's property. So and you may want to try to bring them in. But good luck on that. Why would they why would they voluntarily try to get back in to talk about if it's truly a proprietary issue or or their error? Why would they want to actively get involved in litigation to basically talk or expose one of their problems with their products. So I can definitely see as thorough a discovery into the AI when it was adopted, who the vendor is retrospective analysis, as we're seeing right now with audit trail.


    Paul Carroll 02:18

    People talk about how you can run around with your Apple Watch or the Fitbit I'm wearing or whatever. And you can conceivably get notified that you have an issue that could be restaging a heart attack or something like that. And that's great, that's profound. But you're going to get an awful lot of false positives. There's a smart fellow published and gotten to know a bit named out Lewis with an outfit called crucify helps educate people. Employees, he's hired by employers to help educate them on what is useful and what's not useful when it comes to health care. And he figures that it costs about a million dollars to prevent a heart attack. Right, if you're going to have all these false positives, and then run people through tests, and this, that and the other thing, it costs about a million dollars to run a heart attack, and you're going to do an awful lot of damage to some of those other people in the process. Because as you know, put in stand sir, as you do whatever. You are potentially creating problems. There was a recent report about colonoscopies, which people have talked about as sort of the the gold standard of medical care for a while. And it turns out that there are an awful lot of false positives. Basically, every 450 colonoscopies, we'll find one potential will prevent one cancer. And there are potential side effects to colonoscopies. And then there's some other things that can come up against the treatment. So nobody's saying don't do colonoscopies, but if you take a look at it, it's not this clear, positive in the way that it's been presented for a long time. But of course, in healthcare, you get money talking, because there are an awful lot of people make an awful lot of money doing an awful article and ask hippies, and they're going to push back on the on the results. So I know that a general point and you were looking for something more specific, but I would just say that, that whenever you think about the potential for technology, think not just about the good stuff that's going to happen. But the potential downsides as well because there always are downsides.


    Jerrod Bailey 04:42

    We should be thinking of doing next or monitoring or


    Scott Buchholz 04:46

    I think at this point, that that they should be bullying health care providers, booing, should we be doing their risk programs? I think they need to be attentive. two incidents on the unit, I think they need to follow up, I think they need to bolster and make their risk programs more robust. And that's also medical groups to attack these things early on, as you mentioned earlier, because the exposure, that couldn't be four or five fold, or what it was this year, in the coming year, and it's going to be, it's going to be, there's going to be more claims and more lawsuits. But the sooner we get to this, and frankly, from a defense side, the sooner we can avoid a patient going out and seeking the services of an attorney, we can talk to that person and try to resolve it, rightfully.


    Jerrod Bailey 05:46

    What else is, you know, sort of a change that you're seeing happen? You know, I think we mentioned earlier talking around like disclosures and in some of some of the ways that I think conversations are changing with patients, tell me about that.


    Denise Atwood 06:05

    So with disclosures of unanticipated outcomes, and everyday people, that means something happened between a provider and a patient, and it was not expected, it may have been on the consent form, meaning it may have been a known risk. But if that risk happens, what do you disclose? So, we train our providers to have open disclosures, be honest with the patient, our goal is to do the right thing for the patient, and support our providers through that process, because that's a change from a number of years ago for many providers who may have been in practice for some time. So it's educating, it's supporting, and it's bringing a team together that if that provider is not comfortable, discussing the unanticipated outcome with the family, we actually bring in their chair, to help with those discussions, and show them what it looks like in practice.


    Amy Hanegan 07:10

    Now, one of the things that I have found this very helpful, is it certainly during my witness preparation sessions with experts is I find that there's a lot they want to tell the jury. But what you need to focus his focus on pardon me, is what they need to tell the jury. Are they clear on the allegations that they are addressing? It's amazing to me how they can just go off and onto tangents. And I'm like, Whoa, how does that real relate to the allegation, and when you keep bringing them back to what the allegation is that they're addressing, it's very helpful to them. And it keeps them in what I like a concept that I use with all my witnesses, whether they're defendants or experts, is what is their piece of the pie. So sometimes expert witnesses feel that they have a much bigger piece of the pie than they do. And it's your job as attorneys and even claim representatives, that they are clear as to what they are being hired for and what they're not being hired for. And this will help streamline and create effective testimony, once they understand what the their piece of the pie is, and the allegations. So when we get into specifics of working with experts, I find that the one thing that I need to hear over and over are the development of themes, or what we'll call reiterative statements that the jury can repeat. And sometimes I have actually pulled out or asked the attorney, not me, but I've asked the attorneys to pull out the verdict form. And let's look at the verdict form and which questions are they addressing? They may not be addressing liability, but only causation. And if that's the case, then we need to get them focused more on that. And what I really find important is to make sure that they are creating themes with you with your help, that the jurors can repeat that they can quote those experts I give you on the within the purple box here I've created two examples. There was no delay in Mr Jones's cancer diagnosis. If that should it be a failure to diagnose? Or something a little more complicated. The placental pathology proves that the baby was damaged three months before birth. Some of you may know Rebecca Barragan. I worked on a case with her as an expert. She is the placental pathology expert. And, you know, we just had to go Get her to be able to definitively say this though her slides were illustrative we had to work on getting them so a jury could understand them

First, Matthew Keris, a defense lawyer specializing in artificial intelligence, explains the risk of using AI in healthcare when the product's vendor distances themselves from providers during a claim. The editor-in-chief of Insurance Thought Leadership, Paul Carroll, sheds light on how the volume afforded by AI risk detection can backfire, resulting in many false positives if not managed efficiently. Next, Denise Atwood of District Medical Group offers risk managers advice in dealing with risk disclosure forms following an adverse event. Scott Buchholz, a California defense attorney, calls providers to action to improve healthcare risk management in the wake of AB 35. Finally, Amy Hanegan of Better Witnesses explains how to better equip testifying physicians to persuade juries.


Multiple Contributors

Experts Across Healthcare

Matthew Keris - Civil Litigation Attorney

Paul Carroll - Editor-in-Chief of Insurance Thought Leadership Magazine

Scott Buchholz - Defense Attorney

Denise Atwood - Chief Risk Officer at District Medical Group

Amy Hanegan - President at Better Witnesses Trial Consulting Services



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