Malpractice: Navigating a Lawsuit

October 1, 2008

Roughly two-thirds of U.S. physicians will be sued at least once during their careers. You need to know exactly what to do when it happens - before it happens. We show you how to prepare.

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.

Round one

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.

Discovery

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.”


The questions opposing counsel asks will be “purposefully convoluted,” says Raskin. “The plaintiff’s attorney will often try to be your friend,” he says. “Don’t fall for it. They’ll try to be nice to you so you let your guard down and then come in and hit you with something unexpected. They’re trying to trip you up.”

Other advice? Keep it simple and volunteer nothing. “Answer question with a ‘yes’ or ‘no’ or ‘I don’t know’ where possible,” says Raskin. Resist the urge to try to justify your rationale or treatment protocol.

On the stand

Before the case reaches trial, both sides may try to settle the case out of court. Failing that, the trial phase begins. “Once the case goes to a jury or a judge for verdict, there is an element of control that is gone, even in the most well-prepared and well-presented case,” says Pat Monahan, a partner with Garfunkel, Wild & Travis in Stamford, Conn. “The question becomes, how willing are you to take on that risk and at what cost are you ready to buy out of that risk. That needs to be done on a case-by-case analysis.”

In court, your conduct and demeanor take center stage. Angela M. Dodge, founder of Dodge & Associates Trial Consulting in Olalla, Wash., and author of “When Good Doctors Get Sued,” says physicians should project the “four C’s” at all times - competence, confidence in their care, conscientiousness, and compassion.

“How the jurors perceive a doctor is very important,” she says. “The jury has to believe that the doctor did everything he or she could have done to treat that patient, that they really care about what happened to their patient, and that if it resulted in a bad outcome they genuinely feel bad.”

Show empathy by looking jurors and the plaintiff in the eye and using facial cues that reflect your concern. “The most powerful comment physicians can make to demonstrate compassion on the stand is to look directly at the plaintiff and say, ‘I’m sorry that despite the good care we were giving and all the precautions we took that Mrs. Smith had an unfortunate outcome,’” says Dodge. “You’re essentially apologizing for the outcome of the case, not the quality of care.”

Note the use of the plaintiff’s name. It’s importance to address the plaintiff by name, rather than referring to her as “the patient,” which depersonalizes your comments.

Lastly, strive to project a consistent image. “You want to avoid a Dr. Jekyll and Mr. Hyde effect,” says Dodge. “When you are examined by your own attorney you will be speaking in a relaxed, credible tone. Don’t suddenly become defensive, argumentative, or hostile when you are cross examined by the opposing counsel.”

Monahan agrees: “If it’s a case in front of a jury - (which, very often, involves someone who has suffered some sort of adverse event, so there’s some level of sympathy) - it’s important that physicians come across as having likeable qualities - compassion, integrity and honesty.”

And whatever you do, he adds, don’t talk down to the jury. “Speak in a way that is both instructive and helpful, as if you’re teaching someone,” says Monahan. “Most often people know that doctors are well-credentialed, smart people. But what they don’t know is the kind of person you are. Conduct in the courtroom and on the stand is your opportunity to convey that.”

Also, take time to read your deposition multiple times before taking the stand. “Opposing counsel will usually ask you some of the same questions and if your answer is different to even the slightest degree, they’ll say, ‘Well, Dr. Jones, do you remember six months ago when I asked you this under oath and you gave me a different answer? We’re under oath now, too. Which time were you telling the truth?’ If you start squirming and looking like a deer in headlights, the jurors will get the message that you weren’t being forthright.”

Stay involved

Throughout the litigation process - which can take three to five years - Dodge stresses the importance of being proactive in your own defense. Fight the urge to push your lawsuit out of sight and out of mind. Instead, schedule regular meetings with your attorney to keep the issue both top of mind and moving forward. “Some doctors want to avoid their attorney because who wants to acknowledge they’re involved in a lawsuit? But meeting with them is critical,” she says. “They’re going to need access to your medical records. They may need you to provide them with the instruments that were used or demonstrate the techniques you used to help defend your case.”

You can help your legal team by identifying expert witnesses in your specialty. Ideally, this is someone you studied under or a national authority on the topic in question.

Remember, too, that your attorney’s ability to defend a physician-client depends entirely on the doctor’s honest and candid communication - all of which is protected under attorney-client privilege. “Once they’ve entered into an attorney-client relationship it is absolutely important that physicians be totally frank and honest about the situation because one of the most damaging things that can occur is if that information came out as a surprise later from a different source,” says Monahan.

Nobody would ever suggest that being sued for medical malpractice will be anywhere close to a pleasant experience. But it doesn’t have to break you. Improve your odds of winning a favorable judgment (and keeping your sanity) by educating yourself on what to expect. In this way, you’ll keep a sense of control during the lengthy proceedings - a critically necessary component both to deal with the situation and to ensure you can continue running a successful practice.

Shelly K. Schwartz, a freelance writer in Maplewood, N.J., has covered personal finance, technology, and healthcare for 12 years. Her work has appeared on CNNMoney.com, Bankrate.com, and Healthy Family magazine. She can be reached via editor@physicianspractice.com.

This article originally appeared in the October 2008 issue of Physicians Practice.