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  • What To Do (and Not Do) When You Are Sued: Ten Tips for the Physician Defendant
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Finding yourself on the wrong end of a medical malpractice suit can be a professionally disheartening and personally devastating event in a physician's career. But, statistically, a majority of U.S. physicians will be sued at least once during their lifetime. And, depending on specialty and practice location, many doctors can expect to be the target of multiple professional liability actions during their careers.

While being a defendant in a lawsuit is never a pleasant experience, in this CareerPhysician article we offer some guidance for helping you respond appropriately to allegations of negligence along and some crucial advice on how to successfully weather potential litigation storms.

Notifying Your Carrier
If you receive a summons and complaint - the official legal notice that you have been named in a lawsuit and the listing of the allegations being made against you - notify your professional liability insurer immediately. Usually a telephone call satisfies this requirement, but check your insurance policy to determine whether written notification is required.

Your insurer will request a copy of the summons and complaint as well as a complete copy of your medical records pertaining to the patient/plaintiff. Time is of the essence since most jurisdictions allow for only 20-30 days after the summons has been served for you to file an answer to the allegations contained in the compliant.

The claims personnel from your insurance company will review the documents provided, make an initial evaluation of the case and assign an attorney to defend you in the matter. Your defense attorney will then review the documents and prepare an answer to be filed on your behalf.

While this sounds like a relatively straightforward process, insurance company claims representatives and attorneys often manage 100+ claims files simultaneously. This requires that they find time to focus on your case while juggling a schedule of mediations, settlement conferences, motions, trials and work on behalf of other defendants.

Anything you do to provide the insurance carrier's team with as much lead time as possible will aid in a successful processing of your case.

Pre-Trial Preparation
Certain U.S. jurisdictions have some type of "notice of intent" or "pretrial screening" processes in place. These rules require potential plaintiffs in medical malpractice cases to provide defendants with notice of their intentions a specified period of time in advance of the actual filing of the suit. Physicians receiving such a notice of intent or other legal notice from a potential plaintiff should notify their insurer as soon as possible.

In many cases your defense attorney will not contact you prior to the filing of an answer to the allegations. Often, initial pleadings, the original complaint and answer, are filed in a generic format and your attorney will not necessarily require additional information from you before drafting the answer. Don't worry, though, you will have every opportunity to rebut any allegations you disagree with later in the process.

Securing Medical Records
In addition to making a complete copy of the plaintiff's medical record for your insurance company, you should also make a complete copy for yourself as a secure backup. If your records are kept in a paper format, place the original record in a segregated locked file to ensure that it isn't lost or misfiled and remains intact and available during the course of the litigation.

Take the time to closely review the records to re-familiarize yourself with the patient's course of treatment. It's a good idea to obtain copies of x-ray films or other records pertaining to the patient's care that are not generally filed with the medical record but that may have some bearing on the case.

Do not amend or add to the record at this point. Even if, upon reviewing the record, you discover a glaring omission and your amendment to rectify the documentation is absolutely factually accurate and properly dated and timed, resist the urge. Any addition or change made to the record after the initiation of litigation will appear self-serving and will only hurt the defense of your case. You want your records to be identical to the copy that the plaintiff's attorney no doubt already has obtained.

Contact with Plaintiff's Attorney
Basic human instinct dictates that, upon receiving allegations you believe to be unfounded, you will be tempted to contact the plaintiff's counsel and attempt to talk them out of the lawsuit or, at least, explain their position. This is always a bad idea and can provide the plaintiff with information that may be used against you later in the litigation process.

Be careful not to discuss the claim with anyone other than your insurance company personnel and defense attorney without the prior approval of your team's counsel.

Be Available
Malpractice litigation can be an arduous and time-consuming process. While your defense attorney and insurance company certainly understand that you have patients to see and the demands of a busy medical practice to shoulder, it is important to make sufficient time in your schedule to fulfill your obligations as a defendant.

Oftentimes litigation bogs down because requests for information go unheeded and meetings between physicians and their lawyers cannot be scheduled. In order to keep things moving and not risk missing important deadlines and perhaps settlement opportunities, it is important that you make a concerted effort to respond to requests for information in a timely manner. Making yourself reasonably available for meetings and phone calls with your attorney and insurance company representatives will help your case.

Adjusting to the Litigation Process
Most physicians are as uncomfortable in the litigation setting as their attorneys would be performing LASIK surgery. You will feel as though you have lost the control you are typically accustomed to enjoying during other aspects of your professional life.

Unlike your normal work environment where you set the rules, call the shots and make the decisions, when thrown into the litigation process you will quickly feel more like a follower than a leader --- following the directions of insurers and lawyers and at the mercy of a judicial system that might seem both illogical, capricious or even unjust.

You can help make the litigation process less stressful and confusing if you take the time to ask questions and learn as much as you can about the process. Asking questions ? no matter how many, how minor or how often - will serve to quickly educate you about the legal process, and give you a more manageable understanding about what to expect during the travail. Inevitably, this knowledge will empower you with a greater confidence and strengthened ability to participate more effectively in your own defense.

If, at any point in the process, there is something you don't understand or have a concern about, pick up the phone and call your insurance company claims representative or defense attorney and ask.

Maintaining a Problem-Solving Focus
Most physicians experience an immediate emotional response to being sued. You may be shocked and angered and feel genuinely betrayed. You could start second-guessing interventions with other patients and experience an overall decrease in confidence in your ability to make appropriate treatment decisions. Certainly it is quite natural to become anxious and concerned about your professional reputation and the security of your personal financial assets.

While such angst is natural, physicians who are able to quickly transition from emotional turmoil to problem-solving mode have the best chance for successfully coping with the stresses of litigation.

Physicians, by definition, have strong problem-solving skills. Your training and experience has taught you how to gather information from physical examinations and diagnostic tests; to identify a problem and to develop an appropriate strategy for dealing with it.

Apply these same skills to your approach in working closely in coordinated concert with your insurance company and defense attorney. Their experience and training means they come to view each new malpractice claim as just another of life's problems to be analyzed and solved. Their job is to become active participants in developing a workable strategy to solve your problem. Remember ? when you win they win. Work with them inside this shared problem-solving framework and you will reduce your feelings of powerlessness and increase your sense of control.

Talk to Someone
While, statistically, being named in a medical malpractice suit is a relatively common occurrence in clinical practice today, most physicians are hesitant to talk about their experiences. Whether out of shame, embarrassment or a general feeling of discomfort with the entire topic, you might initially find yourself reluctant to seek support from others during what is often an incredibly trying episode in your professional career.

While the specifics of allegations and strategies should not be discussed, other than as directed by defense counsel or your insurer, talking with a colleague who has been there about your experiences, concerns and questions may be helpful in gaining insight into your own situation and your reactions to it.

Sharing concerns with a spouse, a trusted friend or a professional counselor may also allow you to better understand your feelings and responses to the stress of litigation and to develop appropriate strategies to better deal with these anxious times.

Taking Care of Number One
Knowing that litigation is likely to be a stressful experience, should you find yourself named as a defendant in a medical malpractice actions you should endeavor mightily to maintain a lifestyle that will help you cope effectively with the additional stress.

Eating right, getting enough sleep, participating in regular physical exercise and avoiding excessive alcohol or caffeine consumption can help you deal with these increased levels of stress more effectively.

Make time for hobbies and activities with friends and family. In short, try to live the kind of lifestyle you recommend for your patients to ensure that you are up to the challenges that may lay ahead.

Be Patient
Litigation can be a protracted and slow moving process. Even when you are eventually successful in having a claim dismissed, it can chew up a fair amount of your time and attention. Many malpractice claims drag on for two, three, four or more years before resolution, a time period that will feel interminable to the typical action-oriented physician.

Remember that your attorney and insurance company will be handling a large number of other claims along with yours, as are the plaintiff's attorney, judges and mediators. Sometimes your case will be in the forefront of everyone's minds, but there could also be long periods of seeming inactivity during the course of litigation of every case.

Don't hesitate to contact your insurer or attorney to find out the current status of your case if you haven't heard anything for a while, but don't be discouraged if nothing appears to happening at the moment. Such is the normal progress of claims activity.

Lessons Learned
Even when you are eventually exonerated of wrongdoing in a malpractice case, such claims frequently present opportunities for improving clinical care and office operations. A few examples are ---

  • How could your informed consent procedures or documentation processes be improved to make this type of claim an easier one to defend?
  • Are there more effective ways to communicate with patients and provide for patient education to reduce the risk of future claims?
  • Are there procedures in which you or your staff might benefit from additional training?
  • Even if it is determined that the standard of care was met as to an individual patient, the litigation process usually points out areas that merit your attention to avoid future litigation and thus can serve as an effective performance improvement tool for your practice.

At the conclusion of a case, regardless of the outcome, you should conduct a post-mortem examination of the medical record, the expert opinions offered in the case, the deposition and trial testimony and other evidence to determine what led the patient to file suit and what could have been done differently. In this way, the litigation becomes an effective educational tool.

While getting sued for malpractice is never a positive experience, identifying the actions or omissions that predicated the claim and thus modifying practice behaviors accordingly offers you a unique opportunity to make the best of a difficult situation.

Posted Apr 14 2020, 02:32 AM by admin
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