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3 Keys to Survive a Malpractice Lawsuit


Most physicians are simply unprepared for a malpractice lawsuit. Here are 3 key strategies doctors can use to increase their odds of successfully defending themselves.

This article was co-authored by Ilene Brenner

What is your worst nightmare?

What if you could no longer practice? What if you were tied up in the courts and couldn’t treat your patients?

Imagine how crazy scary it would be to be served an order for a malpractice lawsuit.

Most physicians are simply unprepared for these lawsuits. Most doctors have absolutely no clue what to do before or during a malpractice lawsuit. Physician and author Ilene Brenner has written a book about surviving malpractice lawsuits. Here are 3 key things she suggests you can do to survive your experience with the courts.

The First Thing to Do When You Get Served:

Call your lawyer if you have one. If you don’t, call your insurance company so you can get one.

It certainly would be ideal if doctors had their own malpractice attorney ready to go. For example, your friends or colleagues may have someone to recommend.

However, if that lawyer is not on the insurance company panel, you may not be able to get them. If you are going through the trouble of locating an attorney prior to getting sued, make sure they are on your insurance company panel.

If not, you could petition your insurance company to add them, but that might not work. Either way, have to take someone approved by your insurance company.

There some great privileges in getting an attorney as soon as possible due to the nature of the attorney/client relationship.

Basically, you are allowed to do research for your attorney to help them with some aspects of the case, and that research is privileged.

This is extremely important because later when it comes down to depositions, the opposing attorney will start asking you questions. These will be tough questions, probing questions and you don’t want to be caught on the wrong side of the fence having researched your case on your own without having an attorney.

Remember, if you don’t already have a malpractice attorney, the very first thing you should do is call your insurance company. Your insurance company will then get you an attorney.

Two Horrible Mistakes You Want to Avoid

The biggest mistake doctors make is to try and alter medical records and research the case themselves before contact with an attorney. Many physicians have great intentions, but it hurts them more than it helps them!

The worst mistake any doctor could make is any attempt to alter the medical records (in any way!). You will be found out and it will make you look very bad when that happens.

No matter how good you think you are, there is a paper/electronic trail.

Remember to be very careful BEFORE selecting your attorney and NOT to do research on your own about the case.

If you do anything else, for example, if you go on a website, pick out a book, try to research it, then you are harming your case.

Do not do anything. Don’t talk about it. Don’t talk to anybody. Don’t ask to pull the medical records. Don’t look at it online if you can. Don’t Google anything,

Remember, the first 2 things you want to do are to call your attorney and call your insurance company.

All those other things will get you into trouble because if you've done research, the opposing attorney will ask about it. Then, it will create a flood of questions you don’t want to be answering.

All of that can be prevented if you don’t go there. Once you have made that attorney relationship, you can start to look up information if your attorney is okay with it.

For example, once you have the attorney-client relationship, you could say you were doing research for your attorney and for your case. Therefore, it can’t be used against you.

However, if you do that research before contacting your attorney, it will frame you in a bad light. It will appear like the first thing you did was try to find out information about how to protect yourself.

Be Careful of an Attorney Who Is Not Yours

One of Brenner’s physician friends who got served made their first call to their employer. They regretted that decision! Be careful of your employer’s attorney!

Even if you have the greatest relationship with your employer, the fact is that in many ways you could have different goals and objectives.

What can be deceiving is that initially the relationship may not feel adversarial. For example, you may be co-defendants together. You can feel like it’s you and your employer versus the world.

Consider that you're both at risk and they have the bigger pocket. Therefore, with their attorney they can have more power.

Ultimately the attorney has to make a choice between clients, creating a conflict of interest. They pay more attention to the bigger pockets and frequently will favor the employer over you. Especially if your employer is a hospital. Hospitals get sued more than doctors and thus provide much more business to an attorney. If given a choice, the attorney may choose the employer and throw you under the bus.

It is distinctly possible your attorney’s first action is to get your non-involved employer out of the case (sometimes they get sued along with you for no reason). You may think that is unfair and that you want to get out of the case. Chances are high that you will not get your case dropped at such an early stage. However, the employer can possibly get out early. And that is to your advantage as you don’t want there to be a big pocket in the case to go after. You don’t want a corporation or faceless entity for the jurors to not have sympathy towards. You want a human being in this case. It may seem like I'm favoring your employer by getting them out and keeping you in, but the reality is the best thing that you can do for your case is to get them out of the case right now.

Brenner noted, “I can’t even tell you the number of stories… where everything was going swimmingly until this one moment when the hospital panicked and they said something on the stand that they weren’t supposed to say to protect themselves. Time after time this screwed the doctor and the only reason the physician was saved was because he had a separate attorney from the hospital and was able to defend themselves.”

It can be very complicated, but the best scenario is you have your own attorney.

Final Thoughts

Physicians are overwhelmed with so many responsibilities. Between seeing patients and running our practice, it seems you barely have anytime for your family, let alone other responsibilities.

Adding some time to find a malpractice attorney BEFORE you ever have a case, may seem backwards, but it is better to be prepared rather than sorry! Make sure that they are on your insurance company’s panel.

Remember these 3 keys to surviving your malpractice lawsuit: Contact your attorney immediately after you are served; don’t research your own case (or practically anything else!) until you’ve talked to your attorney; and remember that the employer’s attorney has different objectives than you.

Apply these simple principles and you will be well on your way to enjoying what you do best- treating patients and making a difference in the community without worrying about lawsuits.

Dave Denniston, Chartered Financial Analyst (CFA), is an author and authority for physicians providing a voice and an advocate for all of the financial issues that doctors deal with. He is the author of 5 Steps to Get out of Debt for Physicians, The Insurance Guide for Doctors, The Tax Reduction Prescription, and his new book, The Freedom Formula for Physicians. He hosts a podcast for doctors and the issues they face at www.DoctorFreedomPodcast.com.

Ilene Brenner, MD is an ER doctor and the author of “How to Survive A Medical Malpractice Lawsuit- The Physician’s Road Map to Success”. You can find her blog online at http://drbrenner.blogspot.com/

You can also find her recent interview with Dave Denniston on The Freedom Formula for Physicians Podcast.

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