Whether you have been practicing for two months or 25 years, in the litigious society in which we live, it may not be unusual to learn that a former patient is suing you. Malpractice litigation can happen regardless of your level of training, skill or compassion. Accusations of malpractice usually take the practitioner by surprise, having a devastating effect on both practice and personal life.
Even with this in mind, you cannot and should not conduct your practice with an ongoing fear of litigation. You should, however, prepare yourself for the worst and be ready to deal with the situation if it arises. The following information will help you if accusations or a formal complaint of malpractice are filed. The intent is to help prepare you to deal with a lawsuit in a thoughtful and organized manner.
One way to avoid being taken by surprise is to recognize when trouble may be brewing. If you receive a request for records of a patient who is not involved in a personal injury or workers’ compensation case, it may be an indication that a claim is being investigated. Your staff should make you aware of any request for medical records, so you can determine whether it is relative to an existing claim or possibly an inquiry intended to question your care.
If an attorney contacts you or your office staff requesting a meeting or asking questions about the care of a disgruntled patient, it is likely that a claim is being investigated. Occasionally an attorney may make contact to demand a settlement prior to filing a lawsuit. If you decline, a suit may or may not be filed. If an attorney requests a meeting or phone consultation regarding a disgruntled patient, be very careful about the information you disclose. Ultimately, it is best not to say anything.
Depending on the type of malpractice policy you carry, you may need to contact your carrier if an inquiry is made. With an occurrence policy, it is likely you will receive advice and/or counsel to assist you with any meeting or conversation with a patient’s attorney. An inquiry by counsel representing a patient is a sure sign that something is brewing, whether it materializes or not.
Attempts to collect past-due accounts can often initiate trouble. Unpaid patient accounts are often referred to collection agencies or taken to small-claims court. Patients are generally annoyed or endangered by collection efforts and may attempt to retaliate. A great number of malpractice cases arise because collection efforts have been made against a patient. Whether the claim is legitimate or not, the practitioner is required to respond and be involved in the litigation just as if it were a valid claim.
If a sheriff or other qualified officer of the court appears at your office and requests to speak with you, it is likely you will be served with a summons and complaint. When service is made, you should immediately contact your malpractice insurance carrier to report the claim. The carrier will generally instruct you not to speak with anyone concerning the complaint, except a representative of the company or assigned counsel. In addition, you should not contact the patient or release any other records or X-rays, except through counsel.
The file of the patient should be secured, but you should not make any additional notations to the file or add to or change any existing entries. If the patient attempts to contact you, instruct him or her that because a lawsuit has been filed, you are not permitted to have contact. Any and all inquires are to be directed to your legal counsel.
Once you are aware of an accusation or claim, you should place the patient’s file in chronological order, number the pages and make copies for yourself, your attorney and the insurance company. Do not alter your records in any way or remove anything from the records. Cases in which excellent treatment was given have been lost because the practitioner panicked and made alterations in the records. Altering records causes the practitioner to appear dishonest before the jury. It is much easier to explain your records than to explain why you changed them after a lawsuit was filed.
It is important to make your trial attorney aware of all facts and important information relative to your claim. Do not hide anything from your attorney. Neither you, nor your attorney, wants to be surprised during a deposition or at trial. Information you may have been aware of, but did not think would be important, is usually discovered. If you have any skeletons in the closet, they must be divulged during the initial meeting with counsel.
In order to assist your attorney, it is a good idea to prepare a narrative review of your treatment and to have handwritten notes typed. The meaning of the records should not be changed in the narrative. You will need to be extremely familiar with the records so you do not hesitate or fumble when you are questioned. It’s likely that adverse counsel will request a copy of your curriculum vitae (CV). Make sure your current CV is up-to-date; or if you do not have one, prepare one.
Although your malpractice carrier will provide an attorney to handle your defense, you have the right to personal counsel as well. Personal counsel is not always necessary. However, if you are involved in a situation in which punitive damages are requested in the complaint, you may be advised by your malpractice carrier that those damages will not be covered by your policy. You should hire personal counsel concerning this aspect of a claim.
It will not help to hire a personal attorney who is not well-versed in malpractice law. Although you may trust an individual who has assisted you in the past with a real-estate transaction or will, you may not get the best advice when it comes to malpractice. Malpractice litigation is a very specialized area of law, and you will need an attorney with experience.
Keep in mind that the counsel recommended by the insurance company is experienced in malpractice, or the attorney would not be involved in the case. If you question the advice you are receiving at any point, express your concern to the insurance company. Carefully consider all advice before taking action.
If you have never been involved in litigation before, your initial consultation with counsel should be very informative concerning the litigation process. Although you may be upset by claims of malpractice and want quick resolution, you should realize that the legal process moves slowly. Cases may take from months to years to reach a resolution.
Once a complaint is filed, an answer will be prepared on your behalf denying the allegations. Defenses such as the statute of limitations, an intervening or superseding cause, comparative or contributory negligence on behalf of the plaintiff, or the fact that you’ve rendered proper care and treatment to the plaintiff will be stated.
Next, the discovery phase of litigation begins. Discovery is the opportunity for each of the parties to gather information concerning the claim. During discovery, depositions of the plaintiff and other witnesses with knowledge or opinions concerning the case are taken. Treating doctors will be deposed. Lay witnesses, such as the plaintiff’s family and friends, may be called to gather their observations of the plaintiff’s condition and alleged disability. This step also helps determine what the testimony may be at trial.
Once sufficient records are gathered, discovery depositions of lay witnesses and subsequent treating doctors are taken; expert witnesses are then retained and designated. Expert witnesses are people who are qualified in a particular area to give opinion testimony concerning the standard of care and causation.
The standard of care is defined as the degree of care and skill required of a reasonably competent practitioner acting under the same or similar circumstances. Causation focuses on whether the alleged malpractice caused, or was a substantial factor in causing, the injuries and damages claimed by the plaintiff. It is imperative to take discovery depositions of expert witnesses to determine their opinion concerning these matters. The discovery process also includes requests for production of documents and interrogatories. Interrogatories are accusations or questions that are answered prior to trial.
In addition, either party may produce requests for admissions. These documents request that the other party admit or deny certain statements.
Although the process may sound straightforward to this point, it can take months or years to gather information, respond to interrogations, retain expert and depose witnesses. Scheduling a court date could also take just as long.
You will need to work closely with your attorney to prepare your defense for trial. This will take time from your practice. However, you must realize that it is your case, and your cooperation and input are crucial to the outcome. When the trial date finally comes, you will have been counseled extensively by your trial attorney. Do not fear the trial; instead, view it as your opportunity to prove you acted appropriately and within the standard of care in treating the patient.
Regardless of who wins at trial, appeals may be taken. Generally, verdicts for the defense are not appealed. Plaintiff verdicts can be appealed and can take another one to three years.
Remain professional throughout the litigation process. Keep a level head and work with your attorney to prepare the very best defense possible. Do not be consumed or preoccupied by the litigation. If you let the plaintiff disrupt your entire life, you are letting the plaintiff win. As badly as you may feel about the litigation, it will end.