WHAT
SHOULD I DO IF I’M SUED FOR MALPRACTICE?
Brock D. Phillips
The following are suggestions
physicians should follow if they are sued for malpractice.
1. NOTIFY YOUR INSURER OR
ATTORNEY
Physicians commonly learn about a
malpractice action when a process server personally serves them with the lawsuit. Service
of the lawsuit on your employee may not be proper service. In some circumstances, you may
be sent the lawsuit by mail and asked to acknowledge its receipt. In some states, you must
be given notice by mail of an impending lawsuit. Regardless of how you are notified of the
lawsuit, you should immediately contact your professional liability insurer. The insurer
will retain legal counsel who can determine if the method by which you were given notice
of the lawsuit was proper.
If you are uninsured, legal counsel
experienced in defending malpractice claims must be retained immediately because a
defendant in a lawsuit has only thirty days to file a legal pleading responding to the
lawsuit.
2. DO NOT TALK TO ANYONE
ABOUT YOUR LAWSUIT.
Do not talk to your fellow
physicians about this case. The patient's lawyer has the right to find out about any
conversations you have had with anyone other your insurer or your attorney at any time
concerning this case. Your discussions with this office are completely confidential. If
your office staff is aware of this lawsuit, please instruct them to not discuss this case
with anyone for the same reason.
3. DO NOT RELEASE YOUR
MEDICAL RECORDS TO ANYONE.
If your office is presented with a
subpoena for your medical records of a patient who you believe may sue you, call your
attorney or your insurer immediately for instructions. If the Medical Board of California
or other governmental agency requests copies of your chart, call your attorney or your
insurer immediately.
4. DO NOT CHANGE OR ALTER
YOUR MEDICAL RECORDS.
Do not add or remove anything from
your records. Keep your medical records pertaining to the case in a safe place. Discuss
any perceived problems with your medical records with your attorney.
5. KEEP YOUR MEDICAL RECORDS
SEPARATE FROM ANY DOCUMENTS RELATING TO THIS LAWSUIT.
Keep all correspondence from your
attorney or insurer separate from your medical records in the case. Establish a separate
litigation file and keep it in your office or home.
6. DID YOUR PATIENT SIGN AN
AGREEMENT TO ARBITRATE ANY DISPUTE WITH YOU?
Your attorney or insurer should be
notified about any arbitration agreement to determine if your case can and should be
arbitrated.
7. DO YOU HAVE ANY
"EXCESS" OR "UMBRELLA" INSURANCE COVERAGE?
Your attorney or insurer should be
notified of any other insurance policies that might provide coverage for you in the case.
8. SEND YOUR ATTORNEY OR
INSURER A BRIEF NARRATIVE OF THE FACTS AND ISSUES IN THIS LAWSUIT.
You should summarize the facts in
the case and identify any possible criticisms of your care and treatment of the patient.
This should be done as soon as possible. Your attorney or insurer can transcribe your
dictated narrative from an audio cassette if necessary. This narrative can be quite
helpful in preparing your defense.
9. SEND YOUR ATTORNEY OR
INSURER YOUR MEDICAL RECORDS
If you have not already sent your
insurer a complete copy of everything in your medical records for this patient,
including x-rays and laboratory results, you should do so immediately. If you are
uninsured, you should have a copy of these records sent directly to your attorney.
10. WHAT TO EXPECT FROM YOUR
ATTORNEY AND THE LAWSUIT
The litigation will generate an
enormous number of documents. Your attorney should send you copies of the important legal
pleadings and correspondence to your office marked "Personal and Confidential".
If you would like these sent to another address, please advise your attorney. If you are
insured, your insurer will be provided copies of all pleadings and correspondence in the
case. If you would like to review copies of all pleadings and correspondence, you should
advise your attorney.
Your attorney should contact you
after he or she has reviewed the relevant medical records to arrange for a meeting to
discuss this case. You should expect the meeting to last at least two hours.
The patient, known as the plaintiff
in the lawsuit, will probably send your attorney written questions known as
interrogatories for you to answer through his or her own attorney. Your attorney will
forward them to you so you may prepare suggested answers.
The plaintiff will eventually ask
for your deposition. At your deposition, the plaintiff's lawyer will ask you questions in
person. You must answer them under oath. Your attorney should meet with you well in
advance of your deposition to prepare you for it.
Your attorney should also be sending
interrogatories to the plaintiff, reviewing the medical records, and conducting
depositions of the plaintiff and other witnesses to prepare your defense at trial.
In most jurisdictions, there will be
a settlement conference with the court before the trial to determine if the case can be
settled. Your attendance at the settlement conference is usually required by the court
unless you have given your insurer full authority to settle the case for you.
The trial will be held in front of a
jury of six or twelve persons who will be asked by the court to decide if your care and
treatment of the plaintiff used:
... the care and skill ordinarily
exercised in like cases by reputable members of the profession practicing in the same or
similar locality under similar circumstances ....
The law permits your attorney to
call other physicians to testify as expert witnesses at trial as to whether your care and
treatment of the plaintiff met the above described standard of care. Your attorney will
take the depositions of the physicians who will be testifying against you before the
trial. You should advise your attorney if you have any suggestions as to the names of any
qualified physicians who would be persuasive witnesses in front of a jury.
