Malpractice: Navigating a Lawsuit
Malpractice: Navigating a Lawsuit
You just received a phone call from an attorney. He says he’s representing one of your patients. What do you do?
A) Answer only the questions you are asked.
B) Try to convince him he doesn’t have a case.
C) Hang up without comment and immediately contact your lawyer.
The only correct answer is “C,” says D. Bowen “Bo” Berry, a Dallas-based medical defense lawyer with The Berry Firm PLLC. “If you get a call from a plaintiff’s lawyer, under no circumstances should you ever talk to him. All you’re doing is giving him the information he needs to come at you more effectively.”
A scary thought, being sued. If you are — and chances are you will be, considering that a quarter of U.S. physicians are sued for malpractice each year — the outcome will hinge largely on your initial response to the suit, your testimony during deposition, your demeanor on the stand if the case goes to trial, and the degree to which you take an active role in your own defense.
So do yourself a favor: Prepare yourself now — before you’re caught up in this most stressful and disruptive legal maelstrom.
Appreciating the value of undergoing pre-emptive lawsuit education can come hard for some physicians. “It makes sense to educate yourself about the process [before you get served],” says Michael Raskin, a neuroradiologist in Tamarac, Fla., an attorney, and president of the American College of Legal Medicine, “but physicians are very busy and generally don’t want to learn about something that they secretly fear and hope never happens.”
But it’s time well spent, says John-Henry Pfifferling, founder of the Center for Professional Well-Being and an anthropologist who has studied medical malpractice for decades. “The more time you spend with your legal team learning about your case and asking questions, the more you’ll be able to handle certain things that happen during the course of litigation, including gamesmanship,” he says. “There are many legal ploys during the interrogation and deposition, for example, where opposing counsel will ask questions in such a way that try to [make you appear incompetent.]”
If you think there’s any chance you might have done something that could trigger a lawsuit — even if you’ve received no complaint — then immediately contact your insurance provider, says Berry. “They can be a very valuable resource for physicians since they deal with this every day.”
Nothing, in fact, may come from your concerns. But it never hurts to protect yourself by gathering people in your corner, even if nothing comes of your fears.
But then again, something might. It might even be a total surprise to you. Often, physicians find out they’re being sued through a letter of notice from the plaintiff’s attorney. This letter simply notifies you of a patient’s intent to sue.
Right after receiving a letter of notice, fax a copy to your insurance company. Many policies, in fact, require prompt notification of pending legal action to preserve coverage for your defense. Raskin adds that physicians should not assume their case is being “handled” until they hear back from their carrier confirming this. “If you call or send your insurance carrier a legal document and you don’t hear back in a few days, follow up with a registered letter,” he says. “You are under a time limit to answer that complaint and, depending on your state, they can move to a default judgment if you wait too long.”
Some insurance companies will retain counsel for you as soon as the notice letter is received, although most wait until the lawsuit is actually filed. Generally, you’ll be asked to pick from a preselected panel of attorneys that work with your insurance carrier, but you do have some say in the matter. “If you are part of a large group or have some bargaining power on the front end, when you purchase your insurance, you can have it written into the contract which lawyer you’d like to use during a malpractice proceeding,” says Berry.
Rest assured that if you do pick from the pre-approved panel list, you’ll likely get that particular lawyer. “Nine times out of 10, if Smith is on the panel list and you request Smith, the adjuster will give you Smith,” says Berry.
Hopefully, your insurance policy contains a consent clause. (Hint: Review your policy now to see if it does.) If so, the insurance company cannot settle out of court by paying indemnity without your approval. Therefore, the only three options for disposition of the suit under those circumstances are the plaintiff voluntarily dropping the case, trying the case, or the insurance company reimbursing the plaintiff’s attorney for some of his expenses without paying indemnity. Note that settlements using indemnity funds, like adverse judgments, are reported to the National Practitioner Data Bank.
Once the petition is filed in court and you are served, the lawsuit is underway. Both parties will enter a “discovery” phase, where they obtain relevant documents to help them make their cases. They’ll also secure expert witnesses and take depositions or oral testimony under oath that may be used in court proceedings.
The deposition part is where many cases are won or lost; preparation is key. You’ll need to know the patient’s medical record inside and out. This is particularly important, as the plaintiff’s attorney may have access to other records from outside providers and will have spent countless hours preparing questions. The deposition may take several hours — and it won’t be easy. Opposing counsel will use whatever tactics it deems necessary to try to make you say something incriminating or appear incompetent in the eyes of the jury. Still, take heart in the fact that your attorney will be at your side, offering guidance. “When you’re asked a question during deposition, take a deep breath and don’t answer right away,” advises Raskin. “That gives your attorney time to object and it gives you a chance to collect your thoughts and determine how best to answer.”