By Daniel Freidlin, Esq.
Monday, January 20, 2020
Critical to the defense of any medical malpractice claim at trial is neutralizing and eliminating sympathy from the pool of prospective jurors that will ultimately render a verdict as to whether the defendant physician is liable for the patient-plaintiff’s injuries. This is especially true when the injured party is a child.
Children are attractive prospective plaintiffs for the personal injury lawyer, as a juror’s natural sympathetic response to an injured child may color how they see the evidence at trial. Additionally, the plaintiff’s attorney knows the defense lawyer will not dare to aggressively cross-examine or challenge the child on the witness stand (assuming the child is old enough to testify) for fear of angering the jury, especially knowing that children are less likely to exaggerate the truth. These are only some of the factors that complicate the defense of the healthcare professional at a trial involving an injured child. As such, when dealing with children as potential plaintiffs, it is important for the treating physician to develop strategies which mitigate their potential exposure even before a lawsuit is brought.
Pediatric orthopedic surgeons are potential targets of medical malpractice lawsuits, as these physicians are often called upon to evaluate and treat children following major trauma. A recent study found approximately 1% of all claims nationwide were brought against pediatric orthopedic surgeons and 1/3 of those result in some form of payment. These cases can include allegations of failing to diagnose a systemic condition, delay in initiating treatment, negligent performance of the surgery itself or the failure to obtain informed consent.
When it comes to evaluating and operating on children, it is important for the surgeon to recognize that they may be dealing with more than a surgical issue. If there is any question as to whether a systemic process, i.e. infection, is causing the presenting complaint, the child’s pediatrician as well as other specialists should be consulted.
In addition to careful assessment of the child’s condition, it is important to communicate relevant information regarding the proposed treatment plan and any follow-up care. Because it is not the child, but rather their parent or guardian, who will be making the treatment decision, the communication must be clear and complete to defend against a potential lack of informed consent claim.
In the context of litigation, the healthcare provider’s thought process and rationale for judgments made, any consultations called, and all critical substantive conversations must be clearly documented. The importance of documentation in the context of defending medical malpractice claims involving children cannot be understated. These cases may not be initiated until many years after the treatment is rendered. This is because the statute of limitations in New York is extended for children to two and a half years until after the child reaches the age of majority or ten years from the date of treatment (whichever is less).
Given the time that passes from when the treatment is rendered to when the lawsuit is started, the defendant physician is unlikely to recall the patient or the rationale for the treatment decisions that were made. Without a well-documented chart, the defendant will be hard pressed to effectively reconstruct the history obtained from the parents, the assessment of the available clinical data, the communications with the parents or guardian, and the ultimate judgment as to the proposed treatment plan. The ability to reconstruct these key details is crucial to the ability to overcome a juror’s natural sympathy towards an injured child and allow for acceptance that even children can have negative medical outcomes in the absence of negligence.
Daniel L. Freidlin, Partner, is an attorney in the Medical Malpractice Defense Group at Martin Clearwater & Bell LLP. For more information, visit mcblaw.com.