If a lawyer calls

May 4, 2007

Malpractice Consult

Key Points

You get a message that an attorney has called and would like to talk with you about a patient you treated months-or even years-ago. Do not call the lawyer back. Repeat: Do not call the lawyer back.

Here's what you should do: (1) Review the patient's record to see if there's any possible malpractice; (2) Notify your insurance carrier if you think there's any chance of a lawsuit; and (3) Ask a staff member to call the lawyer and explain that communications from attorneys you don't know must be received in writing.

Of the many reasons a plaintiffs' attorney might call you, none are to your benefit. If the attorney thinks you have some malpractice liability, he may want to pump you for information in the hope that you'll say something that will make his case for him. Or if the primary defendant is a doctor who treated the patient before you did, the attorney may be angling for a free assessment of the patient's condition and/or free expert testimony to assess and document the damages.

A seemingly innocuous comment to a plaintiffs' attorney-such as, "I guess I forgot about that"-can lay the groundwork for a malpractice claim based on an omission. Or "I guess I could have done that [procedure, diagnosis, treatment] better" might result in a claim based on departure from the standard of care. And if you express reservations about a colleague's treatment, the attorney will surely name you in the lawsuit too, partly to get your expert testimony.

The law provides legitimate procedures by which parties can learn facts about a case from each other. The plaintiffs' attorney should begin by requesting a copy of your records, accompanied by a HIPAA-compliant authorization. After such a request is made, do not change the record in any way, because such alterations would be viewed as self-serving. (For more on altering medical records, see the upcoming Malpractice Consult column in our May 18 issue.) Your malpractice carrier can assign counsel for your defense.

After the attorney receives copies of your records, if he has questions about them he shouldn't e-mail you or call you on the telephone. Rather, he can request a deposition. At the deposition, your counsel can shield you from queries that are immaterial or incendiary. You'll probably be instructed not to make conjectures about your treatment or any departures from the standard of care on your-or another physician's-part. The only lawyer you should speak with is your own.

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 deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
.