The subpoena — that little piece of paper that seems to shout, "Thank you for practicing medicine, now please defend yourself."
Ilene Brenner remembers her encounter with the subpoena very well. A sheriff's deputy knocked on the door of her home, kindly introduced himself, and handed over the paperwork to the shocked emergency department physician, now working in Atlanta.
"I had this horrible feeling in the pit of my stomach," she says. "I thought there was a robber in the neighborhood, but instead, I got a subpoena. My heart just sank."
Standing stunned after closing the door, Brenner did something many of us would — she called a family member to relay the events that had just unfolded. For Brenner, that call was to her father, a defense attorney who handles medical malpractice cases.
"I was as clueless as everyone else in terms of that moment when you are sued," she says. "I had someone I could call for help."
For the rest of you without legal assistance in your bloodline or an attorney on retainer, we asked experts on both sides of medical malpractice cases how to avoid being sued and the best strategies to prevent your case ever seeing a courtroom if you do get served a subpoena.
Making a case
A subpoena can be a request to appear in court, but most likely, in medical malpractice cases, it is a request to turn over medical files to a plaintiff's attorney for review. Once the files arrive at that law firm, the process begins of poring over your every note, thought, and communication from the moment you met the patient to the outcome that brought you into the legal arena.
Plaintiff's attorneys usually work on commission; they don't get paid unless they attain a judgment or settlement in their client's favor. For that reason they need to be careful about the cases they pursue. Chicago-based plaintiff's attorney Regina P. Etherton says that she's looking for demonstrable negligence on the part of a medical provider when deciding whether to take on a case, mindful a bad medical outcome does not prove negligence. Etherton says this first step can be a "substantial discussion," and the cases she takes are the ones, "where anyone picking up that file would agree something shouldn't have happened in the fashion it did."
To reach that conclusion, many plaintiffs' attorneys utilize medical professionals as consultants to review files. Etherton has a physician partner at her firm who reviews all of her cases. The consultants are looking for evidence in the record of gaps between the accepted standard of care and what actually transpired. Documentation errors. Miscommunication. Misdiagnosis. Tests that should have been performed but weren't. Anything that might, in retrospect, explain why the patient experienced an unexpectedly negative outcome.
Bruce G. Clark, a plaintiffs' attorney in New York most famous for representing the family of artist Andy Warhol who died following gallbladder surgery — the hospital reached a settlement with the artist's family without admitting liability — estimates that each case he takes on will cost his firm $20,000 in pretrial expenses, and an additional $20,000 after it reaches a courtroom (if it goes that far). That's a big risk, he says.
"Contrary to what doctors think, [plaintiff's attorneys] don't take nonsense cases," he says.
The power of the apology
Want to avoid a possible lawsuit altogether? Our experts agree that a powerful first step lies in an expression of regret if you believe that some action or inaction of yours, or someone on your team, has led to a patient's bad outcome or aggravated a problem.
If you think that apologizing for having done something wrong is apt to increase your chance of being sued or be used as damning evidence against you at trial, please know that plaintiffs' lawyers want you to think that way.
"As the plaintiff's attorney, I live in dread of that situation," Clark says of physicians who apologize. "The client is likely to say that is all I want."
Fellow New York-based plaintiff's attorney Gerry Oginski agrees with Clark that it is much harder to prosecute a case once a physician apologizes.
"It totally shifts the focus," he says. "That's not to say a jury won't award money or a case won't be settled … but it is much, much harder for me to get a jury to dislike a doctor or to even hate a doctor based upon what he did or did not do."