White Coat to Pinstripes: The Doctor in Small Claims Court

One of the stressors for a physician involved in a medical malpractice lawsuit is the feeling of being put into a foreign environment. Rare is the doctor who instantly warms to the rules of evidence and the concept of shifting burdens of proof.

In most medical malpractice cases, the physician relies on another professional -- the defense attorney -- to navigate the court system and tell the judge, jury, or arbitrator why the plaintiff’s case should fail. Most, that is, but not all: When a physician is sued in Small Claims Court, it is the doctor’s turn to be lawyer for a day.

A 36-year-old first-time patient came to Dr. G, a gynecologist, for early pregnancy termination. An ultrasound confirmed a 6 ½ week pregnancy. Dr. G and the patient discussed using RU 486 to terminate the pregnancy. Though Dr. G suggested to the patient that she not take the pills until Sunday (because of the possibility of bleeding on the weekend), patient insisted on taking the initial set of pills that Friday, following with the RU 486 suppositories on Sunday.

An ultrasound the next week confirmed an empty uterus. A week later, however, the patient contacted Dr. G complaining of heavy bleeding. She visited the emergency room that day where she was found to be stable. Several months later, the patient visited Dr. G asking to be evaluated for endometriosis or infection, though she had no fever, chills, pain or other abnormal findings. At the patient’s request, Dr. G ordered a CBC and sonogram at the nearby hospital, but the patient refused to sign a document stating that she would be financially responsible for the tests. She concluded the visit by telling Dr. G, “I’ll see you in court.”

Dr. G then received a letter from the patient that simply stated: “Please be aware that I am suing you for medical malpractice.” Dr. G contacted CAP-MPT, which assigned a claims specialist to visit his office.

When Dr. G later received a summons to appear in Small Claims Court, Dr. G and his claims specialist were prepared. They immediately had the matter reviewed by a board-certified gynecologist, who found the care completely appropriate and well documented.

In Small Claims Court, no party may be represented by an attorney. The limit that a plaintiff may recover is $5,000. If the plaintiff prevails, the defendant may appeal the matter to the Superior Court, and may then be represented by an attorney. If the defendant wins in Small Claims Court, the plaintiff has no right of appeal.

Though Dr. G had to represent himself before the Small Claims Court judge, he and his claims specialist prepared for the trial together. In addition to bringing in a letter from the reviewing gynecologist attesting to Dr. G’s compliance with the standard of care, Dr. G was armed with other key tips for trial day:

Burden of Proof – In medical malpractice actions, even in Small Claims Court, the plaintiff has the burden of proving that the physician deviated from the standard of care and that such deviation caused an actual injury.

Expert Testimony – In order for the plaintiff to prevail, she must prove negligence through expert testimony. Dr. G was advised that if the patient does not submit expert testimony from another physician, he should point out to the judge that she has failed to prove her case.

No Hearsay – Dr. G was advised to watch out for statements the patient may make to the judge as to what other physicians told her. Unless the patient brings in that other physician or submits a declaration, Dr. G should ask the judge to disregard the comments as “hearsay.” Dr. G should explain that without that person in court, he lacks the opportunity to ask the other doctor questions regarding his or her opinions.

Informed Consent – Dr. G’s claims specialist prepared him for the possibility of the plaintiff claiming that she lacked the necessary information on the treatment to give her proper consent. Before the hearing, Dr. G was prepared to testify as to all the information that he and the patient discussed regarding the proposed treatment. If there were some risks that were not mentioned, they were so minor or rare that he did not believe them useful to discuss with patients.

At the time of the hearing, the patient claimed to the judge that the RU 486 treatment caused her to develop an infection. However, she failed to bring in any kind of expert testimony, and the judge took the matter “under submission.” A week later, Dr. G received the ruling from the court: A defense award.

We have heard no word on whether Dr. G now wants to go to law school. More likely, he’s simply satisfied that his experience with the legal system was brief and successful.

Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com