You've been sued for malpractice: Now what?

Being sued for malpractice, especially for the first time, can be an unsettling and frustrating experience. The consequences of a lost case can range from an increase in future insurance premiums to a health department investigation which could affect your license. So it is imperative that you immediately report a malpractice claim to your professional liability insurance carrier and retain an attorney specializing in the defense of medical malpractice cases in order to protect your interests.

With so much at stake, it is very important that you work closely with your attorney to defend the claim. A collaboration with your attorney will afford you the best opportunity to obtain favorable results. To that end, here are a few suggestions that we believe will be particularly helpful in forging that relationship effectively.

Meet with your attorney early

Experience shows that meeting with a lawyer within two weeks of the commencement of the lawsuit is important. If you have never been sued before, this early meeting is an opportunity for the lawyer to explain the litigation process to you.

This meeting also provides you with the opportunity to explain to the lawyer the medical care that was provided to the patient. The patient’s record can be reviewed and you can relay information that may not be contained in the record. All information about the patient and his or her family, the care rendered by you and other defendants, if any, is important.

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Meeting early also means that your recollection of the events may be sharper than if the meeting is delayed for months.

Prepare for your deposition

A deposition is a question and answer session conducted under oath. The lawyer for the plaintiff asks you questions. It is one of the most critical parts of the litigation process. You cannot win your case at your deposition, but you can damage your chances for a favorable outcome.

Your preparation has two major components. The first is that you review in detail all your records, including any hospital records where you participated in the patient’s treatment.

The second is to meet with your lawyer for an extensive discussion of the medico-legal issues. Except in the rarest of cases, it is not sufficient to meet briefly with your attorney immediately prior to your deposition.

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It is often best to meet three or four days in advance. An early meeting provides time to brush up on any loose ends, and a meeting relatively close to the deposition will keep the matter fresh in your mind.

At that time, you and your lawyer will extensively examine the issues that will be the focus of the deposition. He or she can help you phrase your answers to be concise and accurate.

Thorough preparation will be evident to the attorney for the plaintiff and you will be sending a message that you are serious about defending yourself. You should be so well prepared that at the end of your deposition, you will be in a position to tell your attorney that your preparation was more focused and comprehensive than the plaintiff attorney’s questions.

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Attend depositions

You have a right to be present at all depositions in your case. Physicians often do not attend other- party depositions for many reasons, starting with the fact that it is, of course, time away from the practice.

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On occasion, however, your presence might be helpful. There is no more forceful motivation for the witness to tell the truth than having you present in the room and being in a position to immediately notify your attorney when you believe the plaintiff’s responses are inaccurate or untrue. Whether present or not, ask for copies of all transcripts of the depositions. You need to know what the other parties have said under oath.

Select witnesses

Your lawyer should know what he or she is looking for in selecting an expert witness, but your insight on the case should be considered as well.

Keep in contact with your lawyer

Ask for status reports on what is happening. While it may be convenient to put the lawsuit out of your mind, you should not ignore it. Unfortunately, malpractice lawsuits rarely just go away.

Richard C. Baker, JD, is a partner at Meiselman, Packman, Nealon, Scialabba & Baker, P.C., in White Plains, New York. Send your legal questions to medec@advanstar.com.

NEXT PAGE: Common reasons for malpractice lawsuits

Common reasons for malpractice lawsuits

Lack of informed consent

It’s essential to verbally communicate the risks before a procedure, not after-and to include this information in a written consent form that the patient signs. The patient must receive a proper explanation of the form’s purpose that clearly spells out the risks inherent in the procedure.

Faulty communication

Honest and open communication is the best approach; that’s why it’s often referred to as “disclosure.” When patients feel that healthcare providers genuinely care and have their best interests in mind, they tend to be more forgiving of errors.

Failure to stay up-to-date on standards and training 

Physicians also need to be aware of new and revised developments in their areas of practice and specialties. This includes changes in disease management for acute and chronic conditions, technological innovations, recently published research and practice standards.

Inadequate follow-up of diagnostic tests and specialist referrals

Problems resulting in litigation involve physician orders for tests and the corresponding lab or X-ray results, such as when test results aren’t received by the physician, patients don’t follow through with tests as directed, or the results are filed away and the patient isn’t briefed.

Variations in policies and procedures

Policies and procedures should be specific and readily available to all staff members. They can be kept in a notebook or manual or in an electronic format that is easy for the office staff to access. Physicians should review policies and procedures on an annual basis to ensure that they reflect preferences and requirements.

Avoidance behavior

Compassionate gestures count. If a hospitalized patient has a bad outcome, some physicians may avoid making rounds in the presence of relatives. Don’t be afraid to face them. It’s important to let them know you understand how they feel. Make eye contact with whomever you’re addressing and put a comforting hand on the individual’s arm.