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How to navigate a malpractice case

Article

A conversation with Hugh Francis III, MD, about the steps to take if you are sued for malpractice.

A physician has an 88% chance of facing a malpractice lawsuit during their career, according to Hugh Francis III, M.D., chair of the board at State Volunteer Mutual Insurance Company (SVMIC), a malpractice insurer. What can physicians do to lessen the risk of a lawsuit or, in the worst-case scenario, emerge with a good outcome and their career and reputation intact? Medical Economics® sat down with Francis to discuss this topic. The following transcript was edited for length and clarity.

Medical Economics: How likely is it for a physician to face a malpractice lawsuit during their medical career?

Hugh Francis III, M.D.: According to data from State Volunteer Mutual Insurance Company, a doctor has an 88% chance of facing a lawsuit during their career, especially in certain surgical specialties like obstetrics where the likelihood is even higher. So, you can pretty much count on one.

Medical Economics: What is your advice for physicians to avoid a lawsuit? What are some best practices for doctors to make sure that they don’t run into an adverse event?

Francis: The best way to avoid a lawsuit is to have excellent outcomes and results. Most lawsuits arise due to bad outcomes or results. However, even the best doctors can’t get perfect outcomes all the time, despite selecting the best procedures and tests. It is crucial to let the patient know that you care about them and their outcomes, especially when there’s a less-than-perfect outcome. Doctors care desperately for their patients and want to avoid poor outcomes. Excellent communication with the patient and answering their questions is key, as well as documenting all discussions and decisions made. These practices can help in preventing lawsuits.

Medical Economics: Obviously, some of this depends on specialty and the experiences of physicians in their careers, but what are some of the top land mines or issues that may lead physicians toward adverse outcomes and lawsuits?

Francis: The top categories are surgical outcomes, failure to diagnose and medication errors. However, a bad outcome and an unhappy patient who is still seeking answers or is dissatisfied with the outcome (are) necessary for a lawsuit to occur. When there is a problem, doctors should prioritize running to the patient and not the phone. If the patient is informed about what is happening and understands the efforts to solve the problem and prevent it from happening again, they are more likely to be understanding and less likely to seek legal action.

Medical Economics: As we discussed earlier, many physicians may encounter situations where a lawsuit may arise. If a patient files a lawsuit against you, what is the first thing you should do? And what are some things you should avoid doing?

Francis: The first thing to do is to contact your malpractice insurance company. If you’re insured with our company, that’s how you would contact them. You should follow their instructions. Typically, they will assign you a local defense attorney who will handle your case.

It’s important not to talk to other doctors about the case, even though that may be our first tendency. You may be tempted to call a trusted colleague and ask for their opinion on what happened. However, this could create problems for you later. During the deposition, the plaintiff’s attorney may ask you which doctors you’ve talked to about the case and what they said, which could hurt your case. It’s also important to avoid the patient’s medical record. Any late entries made in the record could be viewed as self-serving and harm your case. It’s best to let your lawyer obtain the medical records and review them with you. Avoid any temptation to add entries to the record yourself, even if you’re still using paper records. This is illegal and unethical. Let your lawyer guide you through the process.

Medical Economics: During a lawsuit, physicians may have several questions. What are some common inquiries you receive as a malpractice insurer? Additionally, what questions should a physician ask their insurance carrier about the process?

Francis: Doctors should ask their insurance carriers about their coverage limits, whether the plaintiff’s claim falls within or exceeds the limit, and if they require an attorney to represent their interests. Malpractice lawsuits can be a complex and unfamiliar territory for physicians, and they need to ask these questions to understand their options and the insurance company’s recommended course of action. Instead of dictating what needs to be done, doctors should ask their insurance company about the way forward and what they believe should be done.

Medical Economics: Facing a lawsuit as a physician is undoubtedly an emotional and stressful situation. What advice do you have for physicians to maintain their perspective and continue practicing medicine during this difficult time?

Francis: While some may advise not to take it personally, the truth is that malpractice lawsuits are highly personal to most physicians, and that’s understandable. However, it’s essential to recognize that medical malpractice is big business and an unfortunate reality of practicing medicine today. Physicians should expect to feel desperate, angry, depressed or isolated, but these emotions are common and often part of the process. To keep things in perspective, physicians should focus on defending themselves while also maintaining a balanced and normal life. It’s important to remember that the lawyers handling the case deal with these situations all day, every day. Similarly, as a neurosurgeon would not stress over a craniotomy, lawyers do not stress over defending cases, even though it may be a significant event for the physician. Moreover, physicians should understand that it is unlikely that anyone in their regular job will know about the lawsuit, unless they share it themselves. In summary, physicians should cooperate with their attorneys to the best of their abilities, live a balanced life and trust that things will almost always turn out OK for doctors in these situations.

Medical Economics: What feedback has your company received from physicians who have gone through the malpractice lawsuit process, and how does it reinforce the notion that, in the end, things largely work out?

Francis: Physicians who have been through the process tell us that they were pleasantly surprised at how smoothly our company enabled them to navigate this terrible situation. They appreciated having people on their side who knew what they were doing and did it well. Moreover, they were amazed by how effectively their defense attorneys could defend them. Many physicians may not have been defended with that level of success in the past, so they were shocked at how well the job could be done. Our policyholders who have been through a lawsuit with SVMIC are also our most loyal policyholders. They don’t want to hear about changing companies and are our biggest advocates. We are grateful for their support.

Medical Economics: Many physicians in our audience own their own practices and are responsible for purchasing insurance for themselves and their practice. What advice do you have for choosing the best carrier, especially for those considering a change?

Francis: We believe in the mutual insurance company concept, where physician policyholders are the owners and there are no outside investors or stockholders. It’s difficult to see how a company can make financial decisions that benefit its physician policyholders when it’s also answering to outside stockholders who have no medical expertise. When selecting a malpractice insurance company, it’s important to consider more than just the rate. Mutual insurance companies may not always have the lowest premiums, but they are willing to spend more on defending doctors who have done nothing wrong.

Look for a mutual insurance company owned by physician policyholders that gives doctors the right to consent to settle any case. No case will be settled without the doctor’s consent. It’s important to have your day in court rather than settle. So, I would advise looking for a mutual insurance company that gives the physician policyholder the right to consent.

Medical Economics: Is there anything that we haven’t discussed around the topic of malpractice and malpractice insurance that you think is important for a physician audience to consider?

Francis: Well, there are two very important things to keep in mind. The first is the importance of not talking. Physicians should avoid talking to other doctors who are treating physicians or who might testify for them. The plaintiff’s attorney’s first question will be, “Who have you talked to?” It’s hard for doctors not to talk because they are collegial and make decisions well together, but they must avoid talking to prevent problems for themselves. They can talk to their spouses, lawyers and leaders in their faith, but they must avoid talking to other doctors.

Another difficult role for doctors to play is the role of not being in charge. Most doctors are good at their work and make excellent decisions. They are well thought of in their fields and have a tendency to think that carries over into being an excellent private airplane pilot or legal defense adviser when that’s not their area of expertise. They need to listen and cooperate and not be the boss. It’s hard for someone who is a boss all day, every day. The doctor needs to listen to their defense attorneys, prepare for their deposition, answer emails from their defense attorney promptly and do what the lawyer tells them to do. It’s not natural for doctors, but they are smart people and can learn to do it well. This leads to their success in these cases.

Four Takeaways

  1. Physicians are likely to face a medical malpractice lawsuit at some point in their career, making it critical for them to adopt best practices to prevent lawsuits.
  2. Effective communication and documentation are essential to preventing lawsuits, and physicians should ensure patients are aware of treatment decisions.
  3. The top issues that lead physicians to lawsuits include surgical outcomes, medication errors and failure to diagnose.
  4. Physicians should avoid discussing the case with other doctors and stay away from the patient’s medical records once a lawsuit is filed.

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© National Institute for Occupational Safety and Health
© National Institute for Occupational Safety and Health
© National Institute for Occupational Safety and Health
© National Institute for Occupational Safety and Health
© National Institute for Occupational Safety and Health
© National Institute for Occupational Safety and Health