Defending Yourself Against a Medical Malpractice Claim

February 2, 2012

You've heard all the guidance about the importance of good patient relations and documentation as a way to avoid a malpractice suit. But now, you think you may have a problem. Here's what to do.

One afternoon about a decade ago, cardiologist Evan Levine was seeing patients in his office when an unexpected visitor interrupted his work: a process server. "Bingo," he says, "that's how it started." Levine learned a patient was suing him for malpractice, and like many other physicians who receive similar news, it sent him on an emotional tailspin. "I was hurt, I was pissed off for being sued, and I was worried about the consequences," Levine says. "Physicians are fearful, out of their skin fearful of ever getting sued, but 10 years ago that was [me] especially." Levine's lawsuit lasted five years and ultimately resulted in a settlement.

As a result of the experience, Levine says he learned a valuable lesson. "Everyone, no matter how good they are, will eventually be sued ... I should have just accepted it as part of doing business, turned it around and forgotten about it, and went about seeing my patients."

Levine is exactly right. Statistics show that most of you will be sued at least once during your careers. If it does happen to you, experts say controlling your emotions, continuing to practice medicine as usual, and dealing with the lawsuit appropriately will help minimize the negative effect it has on your reputation and/or your wallet.

Here's our guide to ensuring that if that call to action heads your way someday - "You've been served!" - you know exactly how to react and what to do.

Stay calm

Whether you are served through certified mail, a knock on your door, a phone call from the institution for which you work, or a visit to your office as Levine was, learning about a lawsuit against you can unnerve even the most level-headed physician. Don't let it, says Houston-based malpractice attorney Don Karotkin. "Sometimes people panic," he says. "…When people panic they tend to do really crazy and self-destructive things."

Inappropriate discussion of the case nears the top of the list of damaging reactions. It's human nature that a physician undergoing something as stressful as a lawsuit would want to talk about it with trusted colleagues and confidantes, but any non-privileged conversation you engage in regarding the specifics of the case - with friends, fellow staff members, or partners - can later be used against you, Karotkin says. If you believe you need to disclose details of the lawsuit for legitimate reasons (for instance, if you're dealing with a hospital credentialing committee), consult your attorney first. "The doctor should not communicate with anyone whomsoever except his lawyer and his insurance company," Karotkin says. "There are no exceptions to this."

Keep in mind the plaintiff's attorney might try to "trap" you into saying something about the case you will regret later, Karotkin says. For instance, he might ask you to contact him to discuss things, or he might say he wants to hear your side of the story. Don't fall for that, Karotkin says. "Nothing the doctor says is ever going to be used to his advantage so there's absolutely no reason and no incentive to communicate with this other lawyer."

Another common reaction is rushing to review the plaintiff's medical chart. Resist the urge, says Lori Abel Meyerhoffer, a board-certified internist and medical malpractice attorney based in Raleigh, N.C. Your EHR will create an audit trail each time someone accesses a patient record, so reviewing the record immediately after learning of a lawsuit can raise questions from the plaintiff's attorney, such as: "Why did you review it?" or, "Did you determine you did something wrong?" she says. The worst reaction of all is editing or adding notes to the plaintiff's medical chart. This is "inherently suspicious" because it looks like you are covering up mistakes, and it harms your credibility, says Karotkin. "That's a huge gigantic error that practically guarantees that [physician] can't win his lawsuit."

Assemble your team

Here's what you should do upon being served: immediately contact your malpractice insurance carrier. "The earlier the insurance company knows about it and the earlier a lawyer for the doctor gets involved the better," Karotkin says. In fact, he urges, contact your carrier any time you receive communication from a patient or an attorney that suggests even a remote possibility of a future lawsuit. "Doctors aren't trained in the law and they don't know what a threat is and what's not," he says.

If your insurer does not promptly respond to you and assign you an attorney, follow-up with it until it does so, says Richard Tisinger, Jr., a malpractice litigation attorney based in Carrollton, Ga. The lawsuit needs to be answered by its deadline, usually within 30 days of being served, and it's your responsibility to ensure that the deadline is met. "Make sure that you've got that date calendared and you know that an answer's been filed by the date that's required," Tisinger says.

Attorney Ericka Adler based in Lincolnwood, Ill., says some insurers allow physicians to choose their representation from a list of preapproved attorneys. If you have that opportunity, take it, she says. The right lawyer will "help you through the process, help you stay calm, take the time to work you through the issues."

If given a list of attorneys to choose from, research them on the Internet and ask around for recommendations, Adler says. You want someone who has a solid reputation and who has a successful track record representing cases similar to yours. If given the opportunity to interview attorneys, see who is most willing to give you their time and full attention, she says. You also need someone who is honest with you about your case and who is willing to discuss both the "good and the bad." Finally, don't make your decision based on the lawyer with the "biggest name" or the "fanciest office." "That's not a good measure at all of how fine your counsel is or will be," says Adler.

Once your attorney is selected, meet with him as soon as possible, says Randy Cangelosi, a litigation attorney based in Baton Rouge, La. "It is always wise to meet face-to-face to formalize the process and to show that you're serious and willing to spend a little time on the front end to give the case the appropriate amount of attention."

Doctor, don't lawyer

After your initial meeting with your attorney, he will begin preparing for your deposition. He will assemble and subpoena various documents, reports, records, and experts to help support your case, says Karotkin. This is known as discovery.

You will need to participate in written discovery, which occurs when the plaintiff's attorney sends a list of questions to your attorney for you to answer. Meet with your attorney to answer them appropriately, Adler says.

At this time, Cangelosi says, you should explain to your attorney what you know best: the medicine involved in the case; and he will explain to you what he knows best: the law. "If the attorney understands his or her role and the doctor understands his or her role it works out very well."

The discovery process and the period of time leading up to the deposition can take weeks or months, says Tisinger. This process is often long and drawn out and it tends to move in "fits and starts." This may be a challenge for you, because your activity in relation to the case will be limited at times, he says. "There will be a lot of times where not much happens at all and so it gets to be a little bit of a frustrating process."

To help retain a sense of normalcy and take your mind off legal matters, continue practicing medicine as usual, Tisinger urges.

You may be frustrated by how little control you have over the developments of the case, says Meyerhoffer. Physicians are accustomed to making big decisions and managing difficult situations. But the legal process doesn't work the same way. "As far as how active a physician should be, they should be very involved in the entire lawsuit, but only at periods that they're needed," Meyerhoffer says. "Pay attention, participate, and then when you are not asked to do either of these two things, put the case out of your mind and practice good medicine."

Marathon, not a sprint

The deposition is often the "top worry" for physicians when it comes to the legal processes leading up to the trial, says Cangelosi. Don't let it concern you too much from the start, he says, noting that the deposition often does not take place until months or years after the physician is served.

Regardless of when it takes place, adequate preparation is the best way to ensure a successful deposition, says Tisinger. "The physician's main job is to be the factual expert for what has happened in this matter," he says. "You should know the medical records backwards and forwards, including your office records and any hospital records that were involved."

Though you must be an expert on the patient's record in time for your deposition, Meyerhoffer recommends waiting to review them until your attorney or carrier's risk management office has provided a hard copy to you. That can help you avoid questions from the plaintiff's attorney as a result of the electronic audit trail that Meyerhoffer referred to earlier.

When preparing for the deposition, you should also participate in mock depositions in which your attorney will play "devil's advocate," Adler says. In other words, he will drill you with difficult, tricky, or emotionally draining questions that the plaintiff's attorney is likely to ask during the deposition. This will help you remain calm, cool, and collected, and therefore answer the questions appropriately, she says.

By the time the deposition occurs, you should be able to anticipate the majority of the questions that come up, and you should be equipped with the skills to answer the unexpected questions that arise, says Meyerhoffer. "My best deposition preps are when the physician comes out of the deposition and says, 'that was so much easier than your prep.'"

During the deposition, the plaintiff's attorney will not only listen to your responses, he will watch to see how you handle difficult questions, if you get edgy or flustered, and if the jury is going to like you, Meyerhoffer says. Moreover, medical experts on both sides will use your deposition testimony to help them determine whether you met the standard of care in the plaintiff's medical treatment.

It's more likely the lawsuit will conclude in your favor if you appear calm and knowledgeable during the deposition, says Tisinger. "The better job the doctor does, the more that the plaintiff’s going to think, 'This is a tougher case than I thought; maybe this case is worth less money, maybe this case is not worth anything.'"

Conflicts of interest

Usually, at some point in the process leading up to the trial, settlement or mediation discussions occur. "Everybody's looking at what the damages are times the probability that they'll win and figuring out, 'Is this a case that my client should be willing to settle?'" Meyerhoffer says.

Be careful because sometimes the best option for you regarding whether or not to settle is not the best option for your insurer, Adler says. For instance, your insurer might want to settle if it believes settling will save it money in the long run. However, you might prefer the case go to trial so that you can clear your name. Unfortunately, if a conflict occurs, your attorney will side with the insurer, Adler says. "The insurance defense lawyer works for the insurance company and doesn't work for you."

Here's what to do when conflicts occur:

When you do not want to settle but your insurer does. If your policy does not contain a consent-to-settle provision, you will not have much negotiating leverage, but you will have options, says Adler. Retain your own counsel to help convince your insurer to consider your needs. Though this is not always successful, at least "[your] interests are being represented," she says.{C}

When you want to settle but your insurer does not. This happens very rarely, but if it happens, retain independent counsel, says Meyerhoffer. This may help protect your assets if you are found negligent and damages exceed your insurance coverage limits.

Retain perspective

If the lawsuit does go to trial, continue preparing the same way you prepared for the deposition, Cangelosi says. Review the medical aspects of the case and "intimately familiarize" yourself with the medical records involved.

You should also meet with your attorney to discuss what the trial entails, what is expected of you, and the legal developments of the case, Cangelosi adds. "If the physician has prepared by learning the medical chart very well and by refreshing him or herself on the medical research, then [he] has an advantage going into trial because of [his] preparedness."

Though it may be difficult, try to trust that the legal process is fair, says Karotkin. This will help you remain calm and collected as the process moves forward. "Have some faith in the legal system," he says. "Don't consider that it's a stacked deck and the deck is stacked against you." Finally, have some faith in yourself. Don't allow the allegations against you to cause you to doubt your abilities as a physician, says Tisinger. "Too many times I see doctors that get their self-worth wrapped up in what happens with this case. …There's a whole lot that goes into what happens in a lawsuit that does not having anything to do with the actual medicine that was delivered."

In Summary

How not to get sued

• Establish positive relationships with patients and listen attentively to their concerns.
• Keep your cool when patients complain about you, your staff, or your services.
• Empathize with patients when they have bad or unexpected outcomes.
• Contact your malpractice insurer as soon as you think there is a possibility you may get sued.
• Do not confess fault.
• Document everything.
• Keep charts clean, organized, and current.
• Do not speculate with patients about what went wrong when poor outcomes occur.
• Do not make promises to patients about treatment outcomes.{C}

Lawsuit do's and don'ts

Do:

1. Contact your malpractice insurance carrier immediately.
2. Pick your attorney if you have the option.
3. Meet personally with your attorney.
4. Make sure the lawsuit has been answered by its deadline.
5. Continue practicing medicine as usual.
6. Be available and helpful to your attorney.
7. Teach your attorney the medical facts of the case.
8. Pay attention to settlement and mediation discussions.
9. Consider retaining your own counsel if you and your insurer can't agree on how to proceed.
10. Thoroughly prepare for the deposition.

Don't:

1. Speak to anyone about the case but your attorney.
2. Reach out to the plaintiff or his attorney.
3. Review the plaintiff's medical chart before consulting your attorney.
4. Alter the medical chart.
5. Attempt to answer the lawsuit yourself.
6. Tell your lawyer how to run the show.
7. Blindly accept the attorney's and the insurer's decisions.
8. Fail to take the lawsuit seriously.
9. Prepare halfheartedly.

Aubrey Westgate is an associate editor at Physicians Practice. She can be reached at aubrey.westgate@ubm.com.