Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Who can you confide in?

Q: I've been sued for failure to diagnose cancer. I had referred the patient to a specialist, and I'd like to ask him if he thinks I may have missed something during the earlier visits. My attorney has warned me not to discuss the suit with anyone but himself. Is there anyone I can speak with without jeopardizing my defense?

A: The unfortunate fact is that any statement you make to another person about the facts of the case could become evidence against you in your malpractice trial.

The plaintiff's attorney will surely ask if you've discussed the case with anyone, and you'll be obliged to answer. Anyone you spoke with could be subpoenaed to testify about what you said.

The attorney could also try to show that your comments differed from your testimony, or that you violated the patient's confidentiality. The patient's medical information is still privileged and confidential, even though she is suing you.

Talking with the specialist is an extremely dangerous thing to do. He'll certainly be called as a witness, and it's possible that he may be named as a co-defendant as well. His interests may conflict with yours. You could wind up in a finger-pointing match, and any statements you made to him could come back to haunt you.

Friends and family could also be called as witnesses, although that's less likely. It's fine to tell such people that you've been sued and to ask for their support. But don't discuss the details of the case with them. In most states, spousal immunity means that your spouse cannot be compelled to testify against you. But that privilege doesn't include your children, parents, or other relatives.

The rules of evidence usually prohibit hearsay testimony, which is a statement by a third party about what someone else told him. But such testimony is sometimes allowed if the statement is an "admission against interest."

For example, suppose you tell a colleague, "I think I may have messed up and missed the suspicious signs that should have tipped me off to the need for further testing."

A judge might allow a third party to repeat that statement because it was an admission against your interest at the time you made the statement. The remark has some credibility since most people don't make untrue statements against their own interest.

Some conversations with third parties are privileged and confidential, though, and won't be subject to discovery. The doctor-patient privilege protects all information learned in the process of medical treatment. The attorney-client privilege protects all statements made to your attorney, and usually also statements made to any investigator hired by your attorney. You can also speak frankly to your malpractice insurer.

Other privileges are afforded to psychiatrists, psychologists, social workers, and members of the clergy. Some medical societies run support groups for doctors in the process of being sued, and these sessions are also considered privileged.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes 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 magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2002;5:120.