Take "frivolous" suits seriously

August 4, 2006

Malpractice Consult

Q. I've just been sued for malpractice in a case that's obviously frivolous. Yet the attorney assigned to defend me keeps calling to set up a meeting and wants me to spend a lot of time preparing for my deposition. Since the case will probably be dismissed, is all that work really necessary?

A. As a physician, you're not the best judge of whether your case is "frivolous." That's your attorney's job. If he's taking the case seriously, you should, too. Even if it's a "shotgun" suit in which you're only marginally involved, it could still develop into a real legal threat.

Try to schedule meetings with your attorney when you're rested, not after you've been up all night on call. Give him whatever time he needs to prepare the case, even if that means meeting several times, doing so on evenings or weekends, or taking time off from your practice.

Before meeting with your attorney, gather and thoroughly review all the relevant records in the case and the hospital chart, if necessary. Be prepared to explain what you did and why-including your diagnosis, the tests you ordered, and the treatment you provided. Remember, the plaintiff's attorney will have also reviewed the patient's chart just as carefully as you have, and he'll be ready to question your judgment on everything you did.

Since you wouldn't ask your attorney how to treat your patients, don't try to interfere with his direction of your case. Listen carefully to his advice when preparing for your testimony. Without his feedback, you might seem arrogant, flippant, cold, or uncaring when you testify. With some coaching, however, you may appear more credible, personable, and caring. Remember, a courtroom is a stage where you have to perform well and charm the jury. Lawyers know how to do that; physicians usually don't.

Finally, while all defense attorneys would like a client who acts like a movie star, what we really need is someone who cares about and prepares for his case, and who listens to and accepts our advice.

One final warning: If your assigned attorney says he doesn't need to meet with you until just before your deposition, or tells you that all you have to do is, "Just tell the truth," ask for another lawyer.

The author is a malpractice defense attorney with LeClair Ryan in Richmond, VA. He can be reached by e-mail at jfitzpatrick@leclairryan.com
. 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
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