“Dear Dr.___, this letter will serve as a notice of intent to initiate litigation against you for medical negligence...”
These words can be ominous and unsettling to the average physician. However, the following ten points will help you navigate a medical malpractice lawsuit and offer the best advantage to a successful outcome.
1. Don’t panic. Any physician can have a mishap, and, in fact, many physicians will face a lawsuit in the course of their careers. However, that is why you pay pricey insurance premiums. The first thing to do is notify your insurance carrier.
2. Preserve the file. I recommend immediately making at least two full copies of all records and photographs. Your defense attorney will likely want to keep the original chart for safekeeping. Make good quality laser color copies of all photographs with dates. Back up all electronic medical records (EMRs) and create an extra thumb drive. Cases are often jeopardized by “lost” records.
3. Do not make any alterations to the record. There may be a temptation to clarify entries in the record. However, no retroactive changes or alterations should be made. EMR entries have date, time and signature stamps. Sophisticated forensic analysis of paper records can be used to detect alterations. These may trigger an allegation of spoliation which can carry damaging consequences.
Contemporaneously and properly entered information to supplement the record may be appropriate under certain circumstances. However, these may be perceived as self-serving. It is always best to check with your attorney first.
4. Be aware of deadlines. Statutory penalties for missing deadlines may put your case at a disadvantage. Your lawyer will know these and should keep track of them, but it is a good idea to stay abreast of them as well.
5. Choose the right lawyer. Just like we advise our patients to have multiple consultations, you should work with your insurance claims adjuster to secure a compatible attorney. Insurance companies work with reputable and experienced medical malpractice defense firms. The attorneys are generally qualified, but they can have different skills and approaches. Conversely, some defense attorneys are timid or disengaged. Get to know your adjuster. If necessary, ask the insurance company to supply a few names and interview them. Choose the attorney who seems to have a good grasp of your case and a compatible approach to your defense and your personality.
6. Work with your attorney. The legal process is foreign and often intimidating to physicians. Some physicians instinctively take an ostrich approach and try to hide and hope the problem will simply go away. It won’t, and that will only make things worse. Cooperate fully with your attorneys and respond to all their requests in a timely manner. Make their job easier and be your own best advocate.
7. Choose the right expert. The medical expert can be critical to the case. A good expert requires a different set of skills than simply being a good doctor. An impressive academic affiliation and lengthy curriculum vitae alone do not equate to the best expert. The expert should give an honest, thorough assessment of the strengths and weaknesses of the case and exhibit good judgment and sound temperament. The right expert can help with preparation and strategic planning, so encourage your insurance claims adjuster and attorney to involve the expert early in the case.
8. Understand the system. The legal world is very different from your medical world. Invest in an understanding of the discovery process. Timetables are slower, procedural events can be frustrating and materials can be confusing or outright sensational and infuriating. The more you understand the business transaction of a lawsuit the less stressful it will be.
An often overlooked, but potentially powerful early tactic is a compulsory medical examination (CME) of the plaintiff performed by your expert. I am frequently asked to travel to outside venues to perform CMEs. These examinations can be helpful to assess both liability and damages.
In addition, an early proposal for settlement – an action that can trigger a “loser pays” provision for costs and fees, permitted in some states – can often change the dynamic of a lawsuit. The pace and direction of litigation is generally controlled by the plaintiff, which can be frustrating for the defendant. Both of these maneuvers create a rare opportunity to go on the offensive.
9. Participate and prepare. Help your attorney prepare. Be your own best expert. Make the time to attend all depositions and important hearings if requested by your attorney. Prepare for your own deposition. Approach it with an open mind for potential weaknesses. Anticipate questions, answers, follow up questions and follow up answers. Understand the goal of the opposing attorney. Thicken your skin and be ready for criticism and tough, even annoying, questions, but don’t lose your cool. A good attorney, with the guidance of a good expert, will prepare you well.
10. Trial is showtime. A medical malpractice trial is one of the most important events in your professional career. Take it very seriously. Block the date, bring your spouse and staff if advised by your attorney... and prepare. And when the litigation is over, move on, but, with the help of your expert, hold improper behavior accountable.
Editor’s Note: This article is intended for general information purposes only and should not be considered legal advice. For specific information please consult your attorney.
About the Author
Jorge A. Perez, MD
Dr. Perez is a board-certified plastic surgeon, practicing in for over 30 years. A graduate and former faculty member of the Albert Einstein College of Medicine in New York City, he is selected regularly among Castle Connolly/U.S. News and World Report’s listing of Americas Top Doctors. Dr. Perez is an author and has been featured as an expert in plastic surgery on worldwide media, including ABC, NBC, CBS, Univision, and Telemundo. He has lectured and trained thousands of surgeons, in the areas of facial rejuvenation, breast surgery and body contouring. He has served as a consultant to breast implant manufacturers Mentor/Johnson & Johnson and Allergan Medical, an AbbVie Company, and has been an FDA principal investigator. Dr. Perez has been retained as a consultant and medical expert who has testified in matters of plastic surgery and soft tissue injuries, for both plaintiff and defense, for over 25 years. He was recently a featured speaker at the Professional Liability Defense Federation with a presentation entitled “How To Get The Most Out Of Your Retained Expert.”