Proceed With Caution

May 15, 2001

How to defend yourself in a malpractice case


Jeff Dobro, a rheumatologist in Boonton, N.J., knows exactly what it’s like to be sued for malpractice. And it’s not an experience he would like to repeat. Fortunately, with the expertise of an attorney, a legal training course he took in medical school, and careful documentation of care, he successfully defended himself. What he knows for sure is that handling the lawsuit on his own would have been a big mistake.

“As physicians, we may be smart in our fields, but we are not experienced in law. It takes a different set of skills,” Dobro says.

He recommends that a physician being sued for malpractice keep close tabs on the case - staying abreast of its status, paying attention to the alleged claims - but get some good counsel.

Don’t go it alone

Physicians considering handling their own malpractice suits, attorneys say, should “think again.” Most attorneys agree that self-defense is tantamount to performing brain surgery on oneself. As the adage goes, “He who represents himself has a fool for a client.” On the other hand, attorneys do encourage active participation by the physician.

“Even if you feel you know your own story better than an attorney, a physician needs someone who understands procedural and evidential rules,” says Jim Saxton, chairman of the litigation practice for Stevens & Lee in Lancaster, Pa. “It would be such a crime for a physician to have a plausible story but not be aware of the rules and fail to convey the right evidence to the jury.”

“You need an advocate with objective advice,” adds Peter Leibold, CEO and executive vice president of the American Health Lawyers Association. “It is difficult when your judgment is called into question.”

Mary Elcano, a partner with Brown & Woods LLP in Washington, D.C., suggests one possible alternative to hiring an attorney - mediation - which she says may be effective only if standard documents are involved, no criminal activity is alleged, and setting a precedent is not necessary.

“Mediation is more personal, faster, more cost-effective, and can provide satisfaction for both parties,” she says.

Even if a physician chooses to handle his or her own lawsuit, Michael LaFond with Fulloway & Hollis, a law firm in South Concord, N.H., says he can’t imagine that an insurance company would allow it.

“The liability of an insurer rises and falls with the outcome of a case,” he notes.

Rely on your insurer

While they do offer physicians the option of hiring their own lawyer, most malpractice insurers provide attorneys and pay for their counsel, making it even more inviting to rely on the insurer’s resources. After all, it’s in the insurer’s best interest not to pay claims. Warren McPherson, MD, chairman of the board of the State Volunteer Mutual Insurance Co. (SVMIC) in Brentwood, Tenn., offers a few pieces of advice as a physician-insurer.

First, don’t say anything about the lawsuit before informing your insurance company about it. Give the appropriate patient records to your attorney; don’t alter anything even if the information may be detrimental to your case. Carefully review the records pertaining to the lawsuit so you can defend your actions. Although it may be too late for the case at hand, document all subsequent patient encounters and treatment.

“It may be impossible to record everything when certain procedures are common practice, but be sure to cover the salient points,” McPherson says.


Finally, work closely with your attorney, who can guide you through the questions and depositions and prepare you for trial.

“It can be very devastating to spend most of your life caring for people and then have someone say you are a ‘bad’ doctor. It changes the way you look at the next patient, whether he or she is an adversary, instead of looking at the problem,” McPherson says.

He adds that physicians who are sued too frequently are usually dropped from insurance coverage.

In choosing an insurer, Dobro recommends that physicians conduct due diligence and find companies that are pro-physician: willing to go the extra mile to learn about the case and go to trial, even if it costs more than settling.

“Some companies are just insurance companies; business is their priority,” he says. “Physicians don’t have to consent to a settlement; they should have the final say.”

The root cause

As of 1995, as many as 41 percent of physicians had faced at least one claim during their career, according to the American Medical Association.

“It has nothing to do with quality of care but with today’s litigious environment,” says Roy Mason, a partner with Mason, Ketterman & Cawood in Annapolis.

“What actually causes malpractice claims,” adds Saxton, “is not malpractice per se, but patient dissatisfaction. Patients have high expectations and if there is a less-than-desirable outcome, relationships break down.”

Most malpractice cases involve negligence; failure to meet the standard of care; a poor outcome; alleged misdiagnosis; injuries to the patient; and personality conflicts.

Roger Black, MD, (not his real name), a mid-Atlantic psychiatrist, was sued four years after a single encounter with a patient. He had been referred to a suicidal patient who was hospitalized after an overdose. The patient was discharged and committed suicide six weeks later. Black was charged with violation of standard of care by the patient’s family, but after a five-day trial and 15-minute jury deliberation, he was cleared. Although he admits to anxiety over whether he had sufficient documentation, Black relied on the counsel provided by his insurance company.

Black recommends exploring options with counsel, such as whether to settle or go to court; ensuring that the attorney is familiar with your particular medical specialty; and considering independent counsel in addition to the attorney supplied by the insurer.

“Don’t play lawyer; physicians are scientists,” he warns.

Mari Edlin can be reached at editor@physicianspractice.com.

This article originally appeared in the May/June 2001 issue of Physicians Practice.