1. DOCUMENTATION. Documentation is critical to defending a one’s actions. Although some states have passed laws that allow brief, truncated documentation, eg, “RBA (risks, benefits, alternatives) discussed” as adequate to reflect informed consent, it is prudent to know the requirements in one’s own state. In general, adequate informed consent requires a discussion of the medical condition or finding requiring treatment or surgery, the planned procedure, the alternatives for treatment, including observation only, and the substantial risks of the procedure. Such documentation enhances patient understanding while enhancing the defensibility if litigation occurs.
2. COMMUNICATION. The patient in her initial interview with her attorney stated that she wanted to hear an explanation of why things were handled the way they were. She wanted an explanation and an apology. Had this been done, she may not have sued. It is recognized that the lack of clear communication is one of the main issues that lead to litigation. This case illustrates how an open and clear explanation of what happened, with an empathetic approach to the patient’s concerns, may have avoided litigation altogether.
3. EXPERT SELECTION. The expert for the plaintiff had an excellent presence in the courtroom. He was down to earth, established an immediate rapport with the jury, and was able to explain complex concepts in a clear, understandable manner. The concessions addressed during his testimony further established credibility. Too often, experts on both sides take an uncompromising position that antagonizes jurors. Balanced testimony enhances the jury’s acceptance of an expert and their opinions.
4. WITNESS PREPARATION. The defendant presented a defensive posture without displaying empathy for the patient. Such posturing leads to a poor connection with the jury, which may lead to a less favorable ruling.