If a colleague is sued

July 8, 2005

Don't discuss the case with the defendant. Anything you say could be introduced as evidence against you.

Q. I just received a letter from a plaintiff's attorney demanding my records for a patient who's apparently suing another local physician. Should I give him the records? And is it legally safe to mention the suit to my colleagues?

The proper procedure is for the plaintiff's lawyer to send a request for the records accompanied by a signed release from the patient-or her legal guardian if she's a minor or incapacitated-that specifically authorizes you to send them to that lawyer. (Always send copies, not originals.) If you send them without that release, you could be liable for breach of patient confidentiality.

But are you really sure this suit has actually been filed? After all, all you have is the letter from the plaintiff's attorney. If you discuss the case with your colleagues, and it turns out that the suit hasn't been filed yet, the defendant physician could sue you for slander, claiming you've damaged his reputation.

Besides, what benefit is there to discussing the case with your colleagues? The only one who might benefit from such knowledge is the defendant himself. If he hasn't been served with the complaint yet, he'll certainly appreciate the courtesy of a "heads up" call from you alerting him to the impending threat. You can fax him a copy of the attorney's request for records if he asks, but do not discuss the facts of the case with him. Anything you say could be introduced as evidence in the case, and used against you if you end up being named as a co-defendant.

One question you haven't asked is whether you should report this attorney's request to your liability carrier before turning the records over. The answer is Yes, if there's a chance that the records might raise questions about the quality of your own care, or that you could be named as a co-defendant in the case.

If that's a real possibility, your insurer will probably urge you to secure the original record in a locked file so that it won't be lost, damaged, altered, or destroyed. The company might also have an investigator interview you regarding the patient's treatment. It helps to get an early jump on a potential malpractice suit when your memory is still fresh.

The author, who can be contacted at lj@bestweb.net is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com