By James F. Sweeney
How physicians behave after learning that they’re being sued for medical malpractice can determine the outcome of the case, regardless of its legal and medical merits.
That’s why it’s important for physicians to know how to act upon being served notice of a lawsuit. Medical Economics spoke to malpractice defense attorneys and insurers to determine the do’s and don’ts to follow. The experts are:
- Ericka Adler, a malpractice defense attorney with Roetzel & Andress in Chicago
- Richard Cahill, JD, vice president and associate general counsel, The Doctors Company, a medical malpractice insurer
- Sam Rosenberg, a malpractice defense attorney with Rosenberg Jacobs Heller & Fleming, P.C. in Morris Plains, N.J.
The Do’s
Notify your insurer as soon as you’re served.
Not only does that get your insurer working on your behalf as soon as possible, it also means you’ll have legal representation faster, and that provides a protective shield for some conversations, says Adler. If doctors learn of a likely lawsuit before it’s filed, they should alert the insurer, she says.
Employed physicians should notify their employers immediately as well.
Learn about attorney-client privilege.
This protects conversations between legal counsel and their clients from disclosure in lawsuits. However, it only applies once a client has retained or had counsel appointed, and only in conversations regarding the case. Defendants should talk about the case only when their attorney is present and only with those people who are relevant to the case, says Rosenberg, who adds, “Everything you say can be used against you.”
Study your insurance policy.
Doctors should review their malpractice policy to know exactly what is covered, the amount of coverage and what rights and responsibilities they have. Employed physicians should examine their contracts to determine their own and their employer’s responsibilities. While many policies give the physician final say in whether a suit is settled, many employment contracts give the employer that discretion.
Ask questions.
It’s natural upon being sued for physicians to have multiple questions for their attorneys. Physicians should ask their attorney about how long the process will take, the steps involved, and any other questions they have.
Talk to a mental health professional, if necessary.
Being sued for malpractice is a mental and emotional blow, and not being able to talk to friends and colleagues about it can place enormous stress on the physician. “To have an adverse event is bad enough; when it results in a lawsuit that’s even worse,” Cahill says. Conversations with mental health professionals are, of course, privileged.
Be careful about treating the plaintiff.
Rosenberg estimates that 10 percent of defendants continue to treat the patients who are suing them. In those cases, they should treat them only for conditions unrelated to the lawsuit. Dropping the patient can be seen as an admission of guilt, he warns.
Follow through.
Malpractice settlements and adverse judgments are reported to the National Practitioner Data Bank (NPDB) and state medical boards. This information follows physicians throughout their careers. Adler says she tries, when negotiating employment contracts with hospitals, to give doctors the right of approval for the language in the NPDB report. Doctors can appeal notification wording to the NPDB if they feel it’s unfair or inaccurate.
The Don’ts
Don’t panic.
Being sued is common and the odds are in your favor. A 2012 study published in the Archives of Internal Medicine found that about 55 percent of claims resulted in a lawsuit. Of those litigated claims, more than half were dismissed by the court. Of the rest, most were settled before a verdict; less than 5 percent were decided by a trial verdict. And the verdict was in favor of the doctor 80 percent of the time.
Don’t talk to anyone other than your attorney.
This is one of the most difficult rules to follow, but also one of the most important, says Cahill. It’s natural to want to discuss the case with colleagues, friends and others, but those conversations can come back to hurt the defense because they’re not privileged.
“Conversations with other providers, including employees, partners, colleagues, hospital administrators and consultants, are generally subject to discovery and may create an adverse inference that the witnesses were somehow colluding to get their story straight and thereby avoid liability,” Cahill says.
Don’t alter records.
It’s tempting to go back and complete or correct the relevant medical records, but doing so is a big mistake. Plaintiff attorneys will seize upon any alterations and make them look like a doctor’s attempt to conceal or destroy evidence, says Rosenberg.
Any change made to records should be dated, initialed and accompanied by an entry noting who made the change and why. Cahill recommends segregating the relevant original paper records and severely limiting access to them.
“Physicians with electronic health records should exercise similar care,” he says. “Changes to electronic entries should not be made without a clear notation that it is an addendum or a late entry—those should be made only on rare occasion, should be objective and not self-serving and should never attempt to falsely contradict prior entries.”
Don’t investigate.
The natural impulse upon being sued is to go back and review the case, looking for errors, incomplete records, the involvement or liability of other providers, etc. This could involve talking to colleagues, staff and others involved in the case, which can be seen as an effort to block the investigation or cover up wrongdoing.
Don’t talk to the plaintiff’s attorney.
It’s not uncommon for a plaintiff’s attorney to call or email the office of the defendant doctor with a request for records or other information, says Rosenberg. Do not respond to such requests or talk to anyone on the plaintiff’s side, because the conversation can be used against you, he says. Let your attorney handle all records requests. And, of course, don’t offer a settlement.
Don’t use your personal attorney.
Unless a doctor has been sued so often that his or her personal attorney is a malpractice specialist, it’s safer to be represented by an attorney appointed by the insurer or employer. They’re experts in malpractice law and are familiar with the tactics used by plaintiff’s attorneys. “Using your own attorney is like going to a podiatrist to treat your heart disease,” says Rosenberg.
Don’t take a settlement personally.
Most malpractice cases are settled out of court, often with no admission of wrongdoing. These settlements usually are driven by the insurer’s decision that it’s easier and less expensive to settle than to go to trial, Adler says.
“For anyone to have to settle something when they’ve done nothing wrong is hard,” she says. “A lot of it is really about money. It’s a business decision and not about whether the doctor is good or bad.”
Source: Medical Economics, February 18, 2020 (https://www.medicaleconomics.com/news/what-do-if-you-are-sued-malpractice)