It’s happened. A patient is suing you. Now what? Legal experts warn that a doctor’s first steps after a lawsuit can dramatically impact the outcome of the case – for better or worse.
Michael Moroney
Below, medical malpractice defense attorneys share the most important do’s and don’ts for physicians after they receive a lawsuit notice. Spoiler: Whatever you do, don’t ignore the summons.
• Do contact your insurer and/or risk manager. Once you receive notice of a lawsuit, the first step is calling your medical malpractice insurer and/or risk manager, said Steven Fitzer, a medical liability defense attorney based in Tacoma, Wash. The insurer and risk manager will take the matter from there and advise your next moves. Resist the urge to disregard the notice and hope that the challenge goes away when the patient is no longer angry, he said. Failing to notify the insurer in a timely manner could be a policy violation and affect current or future coverage.
• Don’t contact the plaintiff/patient or patient’s family. Instinctively, many physicians feel compelled to call the patient and attempt to settle the conflict verbally, particularly if they have had a longstanding relationship, Mr. Fitzer said in an interview. Don’t do it.
“In 42 years, I’ve never come across a physician who successfully talked somebody out of a lawsuit, once it was started,” he said. “It’s a pipe dream.”
Keep in mind that conversations with patients after a lawsuit filing can be used against doctors in court and certain words can easily be misconstrued as admissions of guilt.
• Do secure all medical records pertaining to the case. Obtain and print copies of all information relevant to the patient’s suit, such as history, billing records, letters, and medical chart. Store the data in a secure location in preparation for transferring to the insurer and/or attorney, said Michael Moroney, a medical liability defense attorney based in Teaneck, N.J.
• Don’t access or change the record. It may seem tempting to review the plaintiff’s medical record and fix any errors found. However, accessing the patient’s electronic data can appear as an attempt to manipulate or delete relevant data, said Joshua R. Cohen, a medical liability defense attorney based in New York.
Joshua R. Cohen
“Avoid accessing [the] EMR or PAC system [and] leaving a digital fingerprint,” he said in an interview. “For example, if a radiologist is sued for an alleged failure to diagnose breast cancer, they should not open that study on their computer as an audit trail will show that. Worse is when they start making measurements after the lawsuit which are now discoverable as part of the lawsuit.”
Leave the record alone and let the attorneys handle the data from here on out, he advised.
• Do discuss the patient case openly with your attorney and risk manager. Honesty about all aspects of a medical case from the start sets the right tone for a positive relationship between doctor and attorney, experts say. Help your attorney understand the medicine so that they can speak intelligently about the details to the court and any retained experts, Mr. Fitzer recommended. If disagreements continually arise among physicians and attorneys, and the match fails, consider speaking to the insurer about a change in attorneys.
• Don’t discuss the case. As Mr. Fitzer puts it, “loose lips sink ships.” Physicians lose confidentiality protections when they talk about lawsuit details with third parties, and those conversations could come back to haunt them. This includes colleagues and staff members in the patient’s care loop, said Catherine Flynn, a medical liability defense attorney based in Teaneck, N.J. The third parties could later be questioned by the plaintiff’s attorney about the case, which could harm your defense.