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When Samuel Davis, Ira Zarin and Lee Goldsmith lecture to doctors, the topic is essentially, “How To Avoid Us.” They are in the small cadre of successful plaintiffs lawyers from New Jersey being hired by medical schools and hospitals to teach malpractice law to students, residents and graduates. They teach comparative negligence, chart the anatomy of suits, explain changes in the statutes and reveal how juries think. They are the zippy alternatives to the risk managers and defense lawyers who have traditionally dominated the doctors’ lecture circuits. These plaintiffs lawyers are giving doctors a living preview of the nightmares they will face if they get sued. “A good plaintiffs lawyer can make the brightest and most competent physician feel insecure,” says Dennis Quinlan, deputy chairman of the Department of Medicine at the University of Medicine and Dentistry of New Jersey. Better to see it in school than face it for the first time in a suit, he suggests. When Davis isn’t suing doctors and drug companies as a partner at Davis, Saperstein & Salomon in Teaneck, N.J., he is a senior lecturer in law at Columbia’s College of Physicians and Surgeons. The climax of his course is a mock trial in his office’s courtroom replica. Medical students serve as the jurors. Davis says he got the appointment through a social contact with Eric Rose, a noted heart surgeon at Columbia. Goldsmith, of Goldsmith Richman & Harz in Englewood Cliffs, N.J., is a doctor-turned-lawyer and a longtime leader of the Association of Trial Lawyers of America-New Jersey. He has taught at Beth Israel, New York University Medical Center and Lenox Hill Hospital in Manhattan and St. Joseph’s Hospital in Paterson, N.J. As for Zarin, “he has sued us enough,” Quinlan says. Now Zarin, of Springfield, N.J.’s Javerbaum, Wurgaft, Hicks & Zarin, runs continuing medical and dental education classes for UMDNJ. His appointment is an outgrowth of his work at Jury Verdict Review, a reporting service he started in 1980. “I introduce myself as a guy who has hit doctors over the head for 50 years,” Zarin says. “I can tell them from the perspective of someone who hits them how to avoid it.” The “it,” of course, is a devastating malpractice suit. “Some of the brightest surgeons come out of a six- or seven-year residency program with virtually zero medical legal training aside from what they have heard in the hallways,” Davis says. “They don’t understand the concept of causation and they are utterly unfamiliar with the statutes that guide the practice.” UNDERSTANDING THE REAL RISKS The common thread in all the lectures is material designed to make the doctors relax about the so-called liability crisis. The lawyers explain how the vast majority of their time is spent convincing patients not to sue. By understanding what kinds of errors will lead to suits and which ones won’t, doctors become better at their profession, Davis and Zarin say. “Physicians who practice in palpable fear of being sued cannot practice effectively,” Davis says. “They are living in a sense of dread and inevitability. They become better doctors by understanding the real risks. They have never been taught where they are likely to have a problem. … They are surprised to learn how few cases we take out of the ones presented to us.” Davis says, “There’s a misconception among doctors that every time they make a wrong slice they are going to get sued, and that’s not the case.” Doctors are surprised to learn, for example, that plaintiffs with less than $500,000 in damages find it hard to get a plaintiffs lawyer to take a case, he says. Zarin says he explains to doctors that a misdiagnosis isn’t necessarily going to lead to a suit. The problems arise when the necessary tests to form the proper diagnosis haven’t been ordered and analyzed, he says. “Making a misdiagnosis is not a deviation,” he says. “The deviation is a failure to rule out the more serious possibilities.” The attorneys teach the importance of communication with patients and the danger of tinkering with charts after questions are raised. It’s normal for a doctor to avoid contact with patients who have had a bad result, but they have to resist the impulse and explain what happened, Zarin says. “Patients get angry because no one sat down and talked to them.” The attorneys also teach that doctors should learn to be wary of people who seem to be natural allies. For example, drug company representatives may be pushing products that carry potential risks. Doctors must also be on the lookout for hospital and medical administrators with too much interest in efficiency and cost control. The attorneys try to explain how the court system works so doctors will understand the attorneys’ motivation for what seems to be unfair action, like suing a doctor with a peripheral role in a case. “After they learn about the requirement of the entire controversy doctrine, they understand that the lawyers are constrained, not malicious,” Davis says. They also explain how the law evolves. Davis says he has been telling New Jersey doctors about court decisions that put professional negligence defendants covered by bankrupt carriers at risk for judgments beyond the $300,000 maximum the Professional Liability Insurance Guaranty Association will pay. Goldsmith says doctors need to know that the number of cases against doctors who committed overt errors is declining. Meanwhile, more doctors are getting in trouble for making errors of omission, like failing to read test results or keeping tabs on patients referred to specialists. Because of insurance and other costs, many doctors are seeing more patients, which makes it easier for care to “fall through the cracks,” Goldsmith says. Despite the benefits of presenting plaintiffs lawyers’ views, schools and hospitals rarely employ such expertise, Goldsmith says. And when they do, it’s for electives, not required courses. That means few medical students hear what plaintiffs lawyers have to offer, he says. Schools and hospital risk managers are careful to monitor the course materials, lest mistakes creep in. “When I gave my first lecture at Columbia, the entire risk management staff sat in the front row,” Davis says. “They wanted to hear if there was any heresy.” Zarin publishes a series of medical liability alerts that use analyses of verdicts and court decisions as teaching tools for primary care givers, emergency doctors, radiologists, obstetricians, surgeons and dentists. UMDNJ has called him in to lecture and create an accredited, self-study continuing medical education course. But the material is vetted by the school. And the alerts carry a disclaimer that says, “because of variations in fact patterns and local jurisdictions, specific legal consultation should be obtained before acting on any information contained herein.” Robert Conroy, who represents doctors in malpractice and licensing matters, says, “I’m not sure plaintiffs lawyers have anything special to offer.” ‘NEAR MISSES’ For the plaintiffs bar, the cases that provide the best fodder for discussion would be the sensational ones that lead to big verdicts and settlements, and “that gives a skewed view,” says Conroy, of Bridgewater, N.J.’s Kern Augustine Conroy & Schoppmann. Doctors are best served when they are taught about the “near misses” that are far more common than gross mistakes that lead to a suit, Conroy says. Perhaps the ideal lecturer on liability would be a medical professional who used to be a plaintiffs lawyer and now works in risk management for a malpractice defense carrier. There is such a person: Paul Sauchelli. He’s a dentist who got a law degree, did plaintiffs work in New Jersey from 1992 to 2000, now works for a carrier and is clinical assistant professor at New Jersey Dental School. He says that by keeping plaintiffs lawyers’ methods in mind, dentists can extrapolate back about what they do — what type of records they keep, what type of consent they obtained — and avoid the errors that leap out at an attorney looking at the record. Quinlan, at UMDNJ, jokes, “As doctors we know what we do and we know we’re always right.” It’s good for doctors to learn to respect the intelligence of lawyers and smart plaintiffs attorneys will drive the lesson home, he suggests. “They are a special breed.” “It gives them awareness of what they are going to face in their careers,” adds Warren Widmann, a surgeon and associate program director for Columbia residents. Davis, he says, “brings credibility to the subject because he speaks about actions that bring clients to him. He also has the image and style that is associated with plaintiffs lawyers. You get the flavor and the flair of an advocate.”

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