In this litigious society, there is a pervasive fear among physicians that they may one day be served with a malpractice claim. Most claims are filed because there was a less than optimal outcome, even if it is eventually proven that there was no actual negligence or malpractice by the physician. The following guidelines detail what to do if you are sued for malpractice. If you adhere to the following guidelines, you can most efficiently and effectively assist in the defense of the claim and help achieve the best resolution of the claim.
WHAT TO DO IF YOU ARE SUED FOR MALPRACTICE:
1. Immediately Contact your Malpractice Insurer or Risk Manager.
The filing of a Summons and Complaint is the formal initiation of a lawsuit. Once you are served with the Summons and Complaint, you should immediately contact your insurer or risk manager to assure that defense counsel is assigned and all deadlines are timely met. Oftentimes you may suspect a patient is considering filing a lawsuit, based on discussions with the patient or a request from their attorney for your medical records. If you suspect that litigation may be filed, contact your insurance carrier to place them on notice so they can immediately begin to assist you.
2. Do Not Discuss the Case with Anyone Other than your Insurer, Attorney and Their Staff.
Plaintiff’s counsel might call you to informally discuss your care of their client or you might consider contacting Plaintiff’s counsel to respond to the allegations of the Complaint. Resist that temptation. There is no privilege in that conversation. Anything you say to Plaintiff’s counsel can be used against you at a later date.
You may also want to confer with colleagues and staff about the patient and what they would or would not have done in a similar situation. Resist this impulse. Anything discussed with anyone other than your insurance adjuster, attorney and their staff is not privileged and Plaintiff’s counsel can subpoena these individuals to reveal the content of these discussions.
3. Obtain The Complete Chart and any other Records of the Patient and Thoroughly Review Them.
If you are sued for malpractice, the third step is to assemble all records of your patient and review them thoroughly. Your treatment may have concluded a year or two ago, or you may not have been involved in follow up or ancillary treatment. It is important to have a thorough understanding of all aspects of the care and whether the treatment met the standard of care. Assess the treatment to determine if the care met standard of care and any applicable guidelines and, if not, any reasons that the treatment did not meet the guidelines. While reviewing the chart, do not supplement, clarify or change the records in any manner. Any attempts to modify the records will most likely be noted and it will seriously affect your credibility.
In addition to the patient’s chart, produce to your counsel all other records you or your office have regarding the patient, including records from other facilities, billing records, appointment logs, and any electronic records held by your office.
4. Meeting with Your Attorney.
Schedule a meeting with your attorney as soon as possible after you have knowledge of the claim. Your attorney will be able to discuss the litigation process with you, including the answer, Certificate of Review, written discovery, depositions, expert witnesses, dispositive motions, the consent to settle clause, reporting requirements, and trial. You will have the opportunity to ask questions, establish a rapport with counsel, provide insights regarding the treatment, identify any potential weaknesses in the case, and assist with identifying experts. You and counsel will be able to discuss the handling of your case, from mundane issues such as the preferred method of contact, to specific expert preferences.
5. Be Open, Honest and a Willing Participant in Your Defense.
The fifth step to follow if you are sued for malpractice is to be open and honest with your attorney regarding the claims, as well as the strengths and weaknesses of the case. The defense of your case is a team effort. You can share your concerns with your attorney, knowing that all communications are privileged. If you second guess why a particular treatment was provided, explore that with your counsel and discuss the pros and cons of the treatment chosen. Were there guidelines which suggested a preferred treatment that your patient refused? Did you provide informed consent? Do you have documentation of discussions with your patient and a signed informed consent? If you do not, it is important to discuss these facts early in the representation so that you, your counsel and the insurer can accurately evaluate the claim. Remember, just because you do not discuss these issues, does not mean that they will not arise later in the case. Failure to address issues at the outset will just mean that your attorney may not have all of the information in sufficient time to be adequately prepared to address these issues.
While it is never pleasant to be a Defendant in a lawsuit, you are a pivotal figure in the course and success of your defense. Now, you will know what to do if you are sued for malpractice in the future. Work closely with your defense counsel and adhere to the foregoing guidelines to assure that there are no surprises and you have the best possible defense.
Dawn E. Mitzner is a partner at Lasater & Martin, P.C. in Highlands Ranch, Colorado. Dawn has excelled in all areas of civil litigation, including defense of professional liability claims, complex commercial litigation and construction defect law. She is recognized as one of Denver’s Top Rated Lawyers of 2013 by ALM and Martindale Hubbell.
Do you know what to do if you are sued for malpractice? Have you been sued for malpractice in the past?