Don’t Sabotage Your Defense When Confronted With a Medical Malpractice Claim
I need to open this article with a disclaimer: I am not an attorney. However, over the years I have seen some costly mistakes made by physicians when confronted by a medical malpractice claim.
In today’s litigious society, even the best doctors get sued. Fear takes hold when the doctor first receives notice of a potential claim. Quickly that fear often turns into outrage and anger that someone is questioning your professional performance and expertise. As tough as it may be, do not take the attack personally. Rage and anger, coupled with a bruised ego and injured pride, can cause you to say or do things that might be dangerous to your defense. Be professional. Hold your temper and respond politely and calmly, but forcefully. A calm head will always prevail over a hot one.
When you receive notice of a potential claim, notify your agent and malpractice insurance company immediately. Do not discuss the case with the family or patient without the prior approval of your insurer or legal counsel. Upon reviewing the initial information, the insurer will most likely appoint an attorney who will advise you on how to respond. Remember, your insurance company has a vested interest in assisting you to either have the case dismissed or win it.
Be honest with your attorney. After critically reviewing your charts and notes, fully explain the patient’s case to your attorney. Point out what you believe to be the strengths as well as the weaknesses in your diagnosis, testing, and treatment of the patient. Your attorney is your partner and there has to be complete transparency on your part to strategize the best defense on your behalf.
One critical facet of a potential case is the deposition. This is a fact-finding expedition by the plaintiff’s attorney. A professional demeanor and well-informed performance can often get a case dropped before it ever gets into court. However, since depositions seem more informal and the plaintiff’s attorney may seem friendly so that you let your guard down, you must be vigilant in not volunteering information or expanding beyond the answer required by the question.
Due to the importance of a deposition, there are some prudent tips you might want to follow:
- Preparation. Review everything related to the case, including patient history and prior treatments, as well as the incident in question. Once you have thoroughly reviewed everything, review it again with your attorney.
- Honesty. Be honest with your attorney. Do not try to slant the facts to make you look better. Your attorney cannot afford any surprises down the line.
- Humility. When being questioned, set your pride and ego aside. Only answer that which was specifically asked of you. Do not volunteer additional expertise or opinion.
- Professionalism. The plaintiff’s attorney may try to exude friendliness to catch you off guard, or the attorney may use anger to cause you to blurt out negative comments. Hold your anger in check and remain calm, collected, and confident. If you need a break to keep yourself in check, ask for one.
There is one final cautionary note. Never, never make changes to your charts and notes after notification of a possible claim. No matter how well-meaning your intentions, such as clarifying or improving the wording, chart changes can be disastrous to your defense.
No one likes to be sued and, once sued, no one enjoys testifying in a deposition or from the stand in court; yet with proper preparation and guidance, the experience need not frighten or terrify you. A good, solid performance can help you win your case and also provide you with a structured opportunity to explain what you observed, what you did, and why you did it.
