ALL MD Attorney Troy Bundy (Full Interview) on Healthcare Matters
In this episode, Healthcare Matters interviews ALL MD attorney Troy Bundy on the recent phenomena of American big-box retail stores offering healthcare services, whether higher medical malpractice insurance policy limits increase the dollar value a settlement when a claim is indefensible, the new Reptilian Theory employed by plaintiff counsel and a shoulder dystocia case he once defended.
Bundy is a hiring partner at Hart Wagner LLP in Portland, Ore., where he defends healthcare professionals against claims of malpractice, cyber-liability, HIPAA and DEA investigations, health-related business formation and contract resolution, licensing board matters, billing disputes and privileging issues.
Bundy is a charter member of the Association of Liability Lawyers in Medical Defense (ALL MD), a nationwide organization that connects healthcare providers with attorneys who specialize in medical malpractice defense.
Interview was recorded October 14, 2015
Mike Matray: Hello and welcome to Healthcare Matters, where the medical and legal communities come together to discuss healthcare matters. I’m your host, Mike Matray and today’s guest is Troy Bundy. Mr. Bundy is a hiring partner at Hart and Wagner in Portland, Oregon where he has been defending healthcare professionals since he joined the firm in 1996. Welcome to the show, Troy.
Troy Bundy: Thanks, good to be here.
Mike: A relatively recent phenomenon in healthcare delivery has been the expanding availability of healthcare services in America’s big box retail stores. CVS recently purchased Target’s [SP] in-store health clinics, making it the largest retail healthcare clinic chain. How do liability risks differ in these big box retailers as opposed to a doctor’s office and how would you recommend that these new healthcare delivery sites mitigate their risks?
Troy: Well, as far as an evaluation of how the risks differ, I would have to say that there is no difference in a big box retailer clinic as opposed to a regular stand-alone clinic as far as the standard of care is concerned. So, the reality is that there are not differing standards of care for a stand-alone clinic versus one that’s in one of these retailers. The risks are that the staff will pretend as though the standard of care is different, but I think in reality, I’ve personally have never seen that occur. I, myself have gone to an ophthalmologist, for instance, in Costco. Examinations are the same and everything is the same. But I think there could be a potential risk that the services are not treated as though they are within a stand-alone clinic. The reality is that you need to, if you are operating a stand-alone clinic, you need to follow protocol: appropriate charting, EMR and refer patients when you need to. If there is any suggestion that a referral is indicated, it needs to occur. The other risk is, I think, from a patient perspective they may or may not treat the visit as though they were going to a formal physician’s office or clinic setting and so, it’s going to be important for the clinician to probably dig a little bit deeper in determining what problems or complaints the patient has that’s bringing them to the clinic that particular day.
Mike: All right. Well, one of the major differences is I, too, have been to a retail health clinic and it was a nurse practitioner and physician’s assistant. There was no actual MD or OD on site. One of the things I noticed would be that what if a more oppressing health matter is discovered in a retail clinic? How would they know in the electronic health record or the traditional medical record that they referred the patient to an actual MD or cardiologist and how would that stand up in court?
Troy: Well, I think in any clinic setting, especially in urgent care, you’re going to have physician’s assistants that provide some of the care or perhaps nurse practitioners. The reality is, when it comes down to litigation, even though we’d just like to say, “Well, the PA met the standard of care as it refers to other P.As in the community”, that is usually not how it goes. The PA is going to be doing work that a licensed MD will perform and therefore I think that most juries are going to hold the PA to the higher standards that are required. So, routinely in my cases where I am defending PAs or NPs, my standard experts are going to be Internists or Family Practitioners or Emergency Room Physicians, whatever the case may be.
I think that is really the standard that is being employed despite the jury instruction that is supposed to be the same medical specialty with training and experience. As far as referrals, they need to be well documented in the chart. That’s really all the referring clinician can do, is make sure that the referral documentation is well set out, both in the order and the progress note and then, most of the time there is going to be a patient take home of some kind that will have instructions. They usually say something along the lines of, “I’ve recommended that you see a urologist for this problem” or, “I’ve recommended that you follow up with your regular primary care provider in regard to your sugars” or whatever the case may be. I think documentation is always the linchpin of any medical malpractice case at least.
Mike: In your professional experience, do higher limits on a physician’s medical malpractice insurance increase the dollar value of settlements in cases of an indefensible claim? In other words, can a physician or entity be over-insured? And conversely, can a case be made that the lower the limit, the lower the risk of exposure?
Troy: Yeah. You know, I’ve dealt with that issue recently and I understand the thought process of wanting to potentially lower exposure by lowering limits, but I don’t agree with it. I think it’s a dangerous practice to be honest with you. You better make sure that there is no ability to pierce the veil and go after personal assets because in some instances, you may have a situation where you only carry, for instance, a million dollars in coverage, yet you’re dealing with high-risk patients and you don’t want to get that extra umbrella or you don’t want to go to a three-five policy or something like that. I don’t think it has any impact, to be honest with you, whether or not you have less limits available to a plaintiff’s attorney. In some instances, and this is one of the points I discussed with some of my clients, you may have a defensible case, but the exposure is high and well-above limits. So, there is more of a likelihood that you would settle a defensible case because of the excess of exposure issue, which then can result in additional premiums having been paid because you’ve been settling cases.
I do think, to a certain degree, the nature of the practice is important to consider. If you’re running an OB clinic or if you are taking care of high-risk pregnancies versus a stand-alone primary care clinic, there may be something to it, but there is no universal answer. I liken it to, yeah, you can ride your motorcycle without a helmet, but if you get into a wreck, you might want to have a helmet on. Quite frankly, I haven’t seen any evidence to suggest that because there are lower limits, you are less likely to be sued or less likely to get out of a lawsuit. Quite to the contrary, if you have lower limits, it’s just like anything else. If you have a high dollar value case and the risk…when we evaluate a lawsuit, we are always asked about defensibility. It’s never about, “Well, what about the fact that there are very little limits?”
When there are very little limits, it raises a number of issues. Let’s talk about, for instance, a clinic that decides to carry a one million dollar of limit policy, but yet, routinely sees lawsuits that are brought against it far in excess of one million dollars. The assets of the clinic are still at risk. Just because you only have a million dollars in coverage, that doesn’t mean that the clinic is safe and it only has a million dollars’ worth of exposure. The assets of the clinic can be leaned against. The assets of the clinic can be collected and the clinic can be closed as a result of a loss because you were underinsured or any number of things, but the fact is that if you have a corporate structure, a clinic that you are trying to protect, you want to make sure that it is adequately protected. Carrying limits that are not enough or that are very low to dissuade lawyers from suing you, is not going to work.
There is always a lawyer out there who is willing to sue and collect money. My advice is to always make sure you have claim insurance. In the event that we have, a catastrophic loss or a big problem with a lawsuit that necessitates a big payout, we will have that money available. Because the fact is with most lawsuits, if you have a one million with a three million umbrella, or a three million with a five million umbrella or whatever the case may be, if you have enough adequate coverage, we will be able to either defend the case 100% to its conclusion if it’s a defensible case or we will be able to negotiate a settlement well within the policy limits so that you can keep your corporation, keep your clinic active. Leaving yourself out to dry in hopes that, “Well, they won’t chase after me because I don’t have a lot of insurance” is not a well thought out business plan, in my view.
Mike: One of the hottest trends employed by the plaintiff’s bar in medical liability lawsuits recently has been the reptilian theory. Can you explain the concept of the reptilian theory, how it influences juries and how the defense counsel can diffuse this strategy?
Troy: The reptilian theory pokes its head in from time to time into my trials and into the discovery process. Basically, as I understand, and I’ve read through a couple of the books out on it, one in particular called “Reptile” which I’ve read over just so I can stay on top of their game. The idea is that, in a nutshell, you want, if you’re the plaintiff, to talk about safety and protecting the public and making sure procedures are safe and standards of care exist as a safety measure. During the course of discovery, you might hear questions in a deposition like, “Is this safe practice?” or, “You do that because it’s the safe way to do it, right, doctor?” That kind of stuff comes in all of the time, but safety is not synonymous with the standard of care and that’s the fallacy.
The story that the plaintiff’s attorneys that use this strategy are trying to sell us is that, “Hey, this is all just about safety and this doctor was unsafe, therefore they should have to pay a lot of money.” They are appealing to this reptile part of the brain that they call, which is that jurors are ultimately self-interested and want to protect themselves and their families and their loved ones from events like this occurring to them or others in the future. So, that’s basically the theory behind it.
My experience with it is that it doesn’t really work, at least in our setting. The objections that I raise during trial are typically, “I object. That’s not the standard of proof. Safety is irrelevant.” Most of my witnesses are prepped to deal with the safety type questions. The prep I typically discuss with the expert, if it’s appropriate, is that medicine itself, a surgery for instance, is not safe. Nothing is as safe as the jury wants to hear it is. There are risks and there are degrees of risk to every type of procedure that a patient can undergo. Some things have a higher risk than others. Ultimately, it boils down to surgical judgment or physician judgment depending upon the procedure we are talking about. I think that the best approach, at least the one that has worked the best for me, is to kind of turn the argument on its head and have the response be, “Well, your use of the word ‘safe’ is confusing to me. It implies that doing it another way is unsafe.” Here’s the deal. As a physician there are degrees of risk. Some risks are worth taking and others are not. Some procedures are very risky, but there is no other options. Some procedures, there are different ways to do it, they both have different kinds of risk, but each one is extreme.
So, I think breaking down the question into terms of risk, rather than safety, because safety really isn’t a fair thing to ask about, especially when you are talking about a medical setting. It allows the physician to answer the question fairly which is really what it’s about. Most of the time, I’ve seen the plaintiff’s lawyers dabble in this idea, using the reptile strategy as they call it, but they usually abandon it after a few objections are sustained and if the objections aren’t sustained, then I will attack the theory head on with my redirect examination of my own witness. It usually comes out in cross-examination and I’ll just say, “There was all this talk about safety, safety this, safety that. When someone asks you, ‘Is this procedure safe?’ If a patient were to ask you that for instance, what would your response be?”
That gives them the ability to start talking about, “Hey, there are no guarantees in medicine,” which is typically a standard jury instruction, “We don’t guarantee a cure. We are invading your body when we are performing surgery” or, “Something significant is happening to your body that we are trying to deal with,” whether it be a birth or some other procedure like that. So, it’s all about explaining to the jury that this isn’t all fun and games. There is always a risk. There is a risk in getting a tetanus shot. You can get an infection. You can have any number of things occur as a result of that. You can develop an abscess. So, no matter how small a procedure, there is always a risk that you cannot completely eliminate.
Mike: So, basically you are trying to redirect the jury’s attention to the fact that the standard of care is the question in front of them.
Troy: Right, yeah. It’s not about safety. It’s not even about what is safer than something else. That question in medical terms doesn’t make sense.
Mike: Right. You were involved in a significant case in Oregon which involved shoulder dystocia. Could you tell us about that case? What made it significant and how it played out?
Troy: It was a case, actually, that I lost. The case played out, typically, as a shoulder dystocia case does, which is the patient went in and delivered a baby, the baby was large and the allegation was that there was a shoulder dystocia encountered, which there was. Maneuvers were employed in order to relieve pressure from the shoulder to prevent the typical injury, which is brachial nerve palsy or brachial plexus injury. The baby ended up with residual problems with his shoulder and arm. I’ve tried a number of those cases. What was unique about this particular case was the fact that the mother had experienced a prior shoulder dystocia and she didn’t know that she had a prior shoulder dystocia.
Mike: How did you discover that she had a prior shoulder dystocia?
Troy: The whole crux of the case was the fact that the documentation of the shoulder dystocia was in the delivery record and the delivery record was part of the clinic file. But the way the clinic worked was, you know, people have more than one child over the years and rather than carrying forward the entire chart, which was essentially converted to an EMR, a new mini-chart would be created for the patient’s new pregnancy so that there wouldn’t be a large chart to deal with all the time. So, the information was there and I saw it in the medical records as did the plaintiff’s attorney, but the doctor didn’t review all of the medical records and when the nurse asked the patient if she had any prior complications associated with previous pregnancies, the mother responded “no”.
So, the case was managed as though there was no prior shoulder dystocia. What was interesting was that the physician who charted a shoulder dystocia, charted a lot of shoulder dystocia. He encountered an extraordinary number of shoulder dystocia in the course of his practice. So, what we were dealing with was what the literature routinely refers to as an over call. Whether or not a shoulder dystocia really occurs is ultimately something that the physician determines at the time of the birth. Obviously there are going to be times when, yeah, that’s a shoulder dystocia, but there are going to be subtler forms that most obstetricians will not refer to as a shoulder dystocia. They just won’t call it that.
That’s really what this was. It was a judgment call that one physician made. The downside of the case was that it was well documented in the chart and ultimately proved to be too much to overcome. The thing that I learned in that case was that this trial tactic, it seems obvious now that I’ve had it occur to me, but one of the things that the plaintiff’s attorney did was he moved to admit the medical records that had been prepared and submitted to my expert for review. And those records were really no different than any of the other records that we had admitted in the case. We didn’t object to the admission of our expert’s file, essentially our portion of the file to be admitted as evidence. So, that was in and nothing really occurred with it and the plaintiff’s attorney didn’t say anything about it until closing argument. Then all of a sudden, in closing argument, the plaintiff’s attorney referred to an ICD-9 code that said “shoulder dystocia” and made an argument that the words shoulder dystocia were included in the file materials that we had. Our provider knew about it and we were somehow hiding the ball and so on and so forth.
The lesson I learned was that whenever we agree to admit an exhibit, even if you don’t talk about the exhibit during the course of the trial, it’s open season and fair game for closing argument. You can make whatever argument you want. However farfetched an argument a plaintiff wants to make about whatever piece of evidence has been admitted, it’s fair game. That left us with trying to respond and explain to the jury, which was basically impossible because evidence had concluded that, “Hey, this is an ICD-9 code. That is something a coder came up with. That is not part or seen in the EMR when our physician was looking at the chart.” So, the lesson I learned was, be very, very careful what you agree to as far as the admission of evidence. Just because something is not discussed during the course of trial and doesn’t come up during the course of trial, that doesn’t preclude the plaintiff or if the defense wants to use it, the defense from making an argument to the jury at the end of trial that the other side can’t legitimately respond to. So, I learned my lesson during that trial about the power of an admission of evidence and whether somebody can create an issue that never existed throughout the course of trial by raising it at the last minute during closing argument.
Mike: Without an opportunity to respond.
Troy: With no opportunity to respond, right.
Mike: Well, Troy, I’d like to thank you for coming on Healthcare Matters today. It was wonderful to have you as a guest and I hope you’ll come on again soon.