By Jonathan Ford Hughes
There are three words in the English language that doctors never want to hear, and they are: You’re being sued. Unfortunately, most doctors—regardless of specialty—will hear them at some point in their career. Knowing what to do when facing a malpractice suit, and perhaps more importantly, what not to do, will go a long way in ensuring things go your way in the courts.
Carolyn Bohmueller is a medical malpractice attorney, focused on defending doctors, with the Pennsylvania-based firm, O’Brien & Ryan, LLP. She says that while certain specialties present a higher risk for lawsuit, based on her experience, all disciplines have found themselves facing legal battles. The keys to coming out on top, according to Bohmueller, are working closely with your malpractice insurance carrier, preserving your medical records, and watching who you talk to about the case.
Malpractice defense priority #1: Your insurance carrier
Bohmueller says you can take this step proactively and reactively. From a proactive standpoint, malpractice insurance carriers will often have educational materials that you can use to better protect yourself. If you work in a group or private practice setting, they may even be able to provide you with materials for your team. Education goes a long way in insulating yourself from risk, Bohmueller says.
When a patient files a lawsuit, the tactics change.
“The first thing you should do is, immediately report the lawsuit to your insurance carrier,” Bohmueller says. “If you work for a hospital, report it to risk management. There are serious consequences if you don’t. Insurance carriers can deny coverage if the lawsuit isn’t reported.”
Malpractice defense priority #2: Your medical records
Your EMRs are going to be the cornerstone of your legal defense.
“Documentation is the key to preparation in the defense of malpractice claims,” she says.
This is where knowing what to do is as critical as knowing what not to do. Priority one is being consistent. Your records should be complete, and completed consistently. In the event of a lawsuit, you need to be able to prove that you adhered to the standard of care, and that proof needs to be clear.
Say, for example, you’re an orthopedic surgeon who does a lot of knee replacements, and before every procedure, you review a pamphlet with the patient that describes the risks of the procedure. You should have something in your notes that indicates that you’ve reviewed the pamphlet every single time. Even if it’s a shorthand mark, it should always be there, Bohmueller says.
Malpractice defense priority #3: Your conversations
When faced with the emotional anguish of a lawsuit, you might be tempted to vent to your team or other doctors about what you’re going through. But unfortunately, Bohmueller says, you need to avoid this.
“The natural tendency is to start talking about the patient, or asking colleagues to review records to see if you’ve done anything wrong,” Bohmueller says. “That’s discoverable. The plaintiff’s legal counsel will ask if you’ve talked to anyone about the case, and that colleague may be deposed.”
This doesn’t mean, however, that you can’t talk to the patient — or even apologize — in a carefully controlled setting, with a carefully controlled message, Bohmueller says. You’ll want to work closely with your attorney on this, but some states have apology laws that keep apologetic conversations out of the legal record. Your attorney will also help you frame your messaging.
“If the doctor says, ‘I’m really sorry this happened to you,’ or, ‘I’m really sorry I didn’t catch this complication sooner,’ I don’t think that’s necessarily a bad thing. I don’t think it’s an admission of liability most of the time. As an attorney who’s going to represent that doctor, I want to show that the doctor is human and that they’re sympathetic to the patient,” Bohmueller says.
“Certainly ignoring the patient is the wrong way to go.”
Unfortunately, a malpractice suit is not a matter of if, but a matter of when. Here’s the best way to respond. Note well: This does not take the place of professional legal counsel. Circumstances vary by case, and laws vary by state. Work with an attorney if you’re facing a lawsuit.
-Notify your insurance carrier or your employer’s risk management department.
-Secure your medical records. Don’t change anything and don’t allow your staff to change anything.
-Don’t talk to any colleagues about the case. The plaintiff’s legal counsel could depose them.