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Medical Malpractice Attorneys, Baker, Donelson, Bearman, Caldwell & Berkowitz

Few things wreak more havoc to a physician’s life than having to face a medical malpractice claim. The longer a physician practices, particularly in certain specialties, the odds for escaping the likelihood of dealing with what can often seem like a demoralizing experience are small. Healthcare attorneys Jill M. Steinberg and Buckner Wellford, with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, are experts in the field of medical malpractice defense of physicians and hospitals. They were willing to share their insights, garnered through their years of experience litigating such claims in Memphis.

Steinberg landed at what was then Heiskell, Donelson, Bearman, Adams, Williams & Kirsh in a summer clerkship after her second year of law school. Beginning at that point, she had an opportunity to assist the famed Leo Bearman Jr., trial attorney extraordinaire, in the defense of medical malpractice lawsuits. She was fascinated by the practice and knew she had found her niche. Offered a permanent position upon law school graduation, she has been with the Baker Donelson firm exclusively. “Every case you work on, you learn about another aspect of medicine…and the really good medical professionals will be patient and teach you so I have learned in every case I have defended.”

Wellford had the early benefit of a well respected mentor, too, having grown up in a household where his father, the Honorable Harry W. Wellford, served for many years as both a trial and appellate judge on the federal bench. “It’s really all I ever wanted to do… my personality and skills are more suited to litigation than other areas of practice. I joined Thomason, Crawford & Hendrix out of law school. They handled most of the medical malpractice defense side, most of it for physicians, so I was exposed early on. I was in the right place at the right time.”



Is there good news in the world of tort reform?

JS: The good news is that the tort reform that went into effect in October, 2008 did decrease the number of frivolous medical malpractice lawsuits in Tenn. They have settled down to about 40 percent less, now that an expert witness must be identified prior to filing.

BW: And the legislature is currently considering the General Tort Reform bill (SB1522/HB2008) that will likely reduce them even more, proposing a $750,000 cap that will almost certainly reduce the number of lawsuits. There are also measures in the legislative package that are designed to address recent court rulings regarding peer review protections to keep damages from being inflated in situations where patients run up a large bill but are not personally responsible for it.



When will the tort reform bill come up for a vote and will it pass?

BW: In this legislative session – with Governor Haslam identifying it as signature legislation – the chances of it passing are very good. Not to say that they won’t tweak some aspect – the caps may go up or down – but some form of tort reform applicable to medical malpractice will pass this session.



Is healthcare reform expected to increase the number of claims and lawsuits?

BW: The national reform laws have not changed on the litigation front in any meaningful way in the near future. But I wouldn’t be surprised to see a wave of state tort reform around the country…or to see federal legislation addressing some aspect of litigation so that there’s a uniform system rather than handled state by state – caps on pain and suffering.

JS: I would say that what is before the legislature in Tenn. is likely to further decrease medical malpractice cases.



What about the increasing multidisciplinary approach to care – do you expect some trends in the future?

JS: I think that with a decrease in reimbursement in Medicare, and insurance companies, physicians are under more pressure to see more patients to maintain income. The faster they move, the greater the potential to make mistakes. With lower level healthcare professionals seeing more patients, more mistakes may be made. Also, I keep reading about the shortage of primary care physicians – if you don’t have a good primary care physician to coordinate your care, you can get lost in the shuffle. I see that as a challenge (for patient care).

BW: There is a gradual blurring of the line in responsibilities of individual physicians and responsibilities of the team – it ends up meaning that the hospital may see an uptick in the number of claims because they will be at the top of the heap in terms of the potential defendants – with the expansion of liability on the part of the hospital for the acts of hospital based physicians. By state law in Tenn., certain physicians can’t be employed by the hospital, like emergency physicians, anesthesiologists, and radiologists, but the hospital can be still be held responsible for their actions of those individuals as the ‘apparent agents' of the hospital. I’m not aware of any movement to change the law on that subject in the short term.



What’s the most interesting aspect of working with physicians or other healthcare providers?

BW: I think Jill would agree that the great majority of physicians who are sued take it very personally – it’s difficult for them to be objective about their own actions. They take what they do very seriously… and you can count on having a very engaged client. The other thing is that a medical malpractice claim that proceeds to trial is the most disruptive thing that ever happens to them in practice.

JS: From the standpoint of nursing homes and hospitals, one of the most interesting things is the unrealistic expectations of the families with respect to care and the treatment and end of life issues. …you can have a patient who is severely debilitated, demented, unable to do anything for themselves, and families have a hard time accepting that their loved ones are going to get worse and die – no matter where they are.



Can you provide some “best practices” for risk avoidance?

JS: Communication with patients. Being accessible. And documentation. Patients don’t generally sue physicians they like and who are responsive and spend time with their patients as well as talk to them and their families on hospital rounds. Lawsuits are not successful against healthcare providers who do a great job of communicating with their patients and other providers and who document their care in the chart.

BW: If there is a bad result, physicians often have a problem with communication. They hear this in risk avoidance seminars – if there’s a problem, this is the most important time to be readily available to discuss what happened with the family, even if it’s been discussed before. This is why lawsuits get filed –due to lack of communication.



So it comes down to relationships and documentation?

JS: Yes…you don’t want to be the physician no one wants to contact (for fear of negative repercussions).

BW: And taking the time to develop relationships with nurses and other healthcare professionals is important, especially when things are not going well.



What is the first thing to do in the early stages after an incident?

JS: People want to know what happened. Sometimes that’s all they want. Providers should talk about the facts but not the blame. And throwing someone under the bus may find them facing a lawsuit. There is a wave in the healthcare industry for early disclosure of the incident. First, investigate what happened and then go to the family to explain. If an investigation reveals obvious negligence on the part of a healthcare provider causing an injury, i.e., if a patient receives an overdose of medication that caused an injury, a monetary settlement can be discussed and offered at an early stage in the appropriate case.

BW: We encourage physicians to contact their liability carrier. If the carrier believes they need representation, they will recommend that. Many physicians are reluctant to contact their carrier for fear of higher premiums - a mistake. They will receive good advice from the carriers, who often have in-house attorneys. Always err on the side of contacting the carrier.



What can physicians do to protect themselves from negativity on surveys and social media?

JS: It goes back to communication and responsiveness. Those who are responsive are less likely to have bad things said about them on surveys and blogs. Physicians need to make sure their front office is responsive to patients.

BW: I come at this issue from a slightly different perspective. The biggest threat to physicians and hospitals from social media comes from federal privacy laws. Any physician/group needs to consider adopting a social media policy but you must enforce it. The policy won’t solve all the problems but you need to take steps to see that employees are complying. If you don’t have a policy, then you may have no protection if you have a rogue employee who goes off the reservation.



How does litigation involving physicians, hospitals, and other providers differ?

JS: There are usually more players to deal with in representing hospitals. It is more labor-intensive because typically there are so many providers.

BW: Hospital litigation gives rise to different conduct, depending on how many systems are identified, there may be five-six theories of discovery.

JS: To prepare them for trial, I tell my physician clients that at the end of the case, their role is to have the jurors come up to them and say, ‘I know you did the best job you could do’ and ‘I would like to have you for my physician.’ Jurors can tell if the physicians care about their patients.

BW: And that’s not uncommon after the trial. When it happens it actually gives a physician a degree of validation after enduring the process.



Do you have any general advice for physicians?

JS: Electronic health records – both a blessing and a curse. Physicians and providers must understand that it is here, it’s our future and you have to document, read and review everything. If there are opportunities to document in a narrative fashion, do it! EHRs are really important in continuity of care and defending lawsuits. Don’t wait hours to enter information… others may want to pull up the record and see test results. Make yourself computer savvy.

BW: Mediation is big now and we have good mediators. If a case is not settled, a mediator can get it rolling again; it’s resulted in many more cases being settled.



How do you decompress and have fun at the end of the day?

JS: I travel with my family – we’ve been to Europe, Argentina and we are taking an Alaskan cruise this summer. I have two boys 21 and 17 who keep me busy…and I bike ride for exercise.

BW: I play tennis and spend as much time as I can with my family – I have a ten year old son and fifteen year old daughter. I enjoy music and live performances.

I also like to read and can become addicted to TV miniseries like “Lost” and “Dexter.”

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Bearman, Buck Wellford, Buckner Wellford, Caldwell & Berkowitz, Donelson, Jill M Steinberg, medical malpractice attorney, medical malpractice attorney. Baker, PC, Tennessee tort reform, tort reform in medical malpractice

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