RM Services
Frequently Asked Questions
Office Practice Risk Evaluations
Arbitration
Self-Evaluation Toolkit
RM Articles
CAPsules Editions
CME Program/Schedule
RM Questions
RM Materials / Forms
RM Alerts
Case Of The Month - Past Issues

“YOU’VE BEEN SUED -NOW WHAT?”

By Dan Groszkruger, JD, MPH
Consulting Editor

Few physicians will escape being sued at some time during their medical careers. Patients and families, like the rest of society, are increasingly litigious. Bad outcomes or complications are now perceived as “medical errors” for which someone must be blamed. Managed care, capitation, and conflicts of interest generate divisive legal battles. Also, recent legislation tends to encourage more lawsuits by creating lucrative financial rewards (e.g., state Elder Abuse laws). Notably, the Patients’ Bill of Rights debate has focused on the patients’ right to sue their HMOs in state court.

Since involuntary involvement in litigation appears almost inevitable, what should physicians do when sued? Are doctors prepared to respond appropriately? This article offers some practical advice on what to do, and what not to do, if you are sued.

DON’T WASTE TIME:
Self-pity, depression, anger and vindictiveness all are understandable and predictable, but mostly wasteful reactions. Anyone who has been named a defendant in a civil lawsuit, physicians included, is likely to respond with shock, followed by sadness and ultimately with anger. The patient’s lawyer has accused you of incompetence, carelessness, or worse. The same patient who once treated you with respect and gratitude now appears to have turned on you, casting you as the enemy. The lawsuit makes it sound like you were either too busy to pay much attention or incompetent, not to mention distracted, sloppy, uncaring and arrogant. All attempts to help your patient now have been characterized as professional negligence and malpractice. Your ungrateful patient appears to be consumed with spite and greed.

While emotional responses are understandable, even predictable, they tend to be thoroughly unproductive. Feeling sorry for oneself, or indulging anger and outrage, channels a physician’s scarce time and energy into mostly wasteful endeavors.

Here are some rational, efficient and productive responses:

: TAKE CONTROL OF YOUR DEFENSE: Accept the fact that being sued is embarrassing, depressing, distracting and downright infuriating. Your reactions are normal. Give yourself some time to work through all the conflicting emotions, but try not to dwell on the unfairness of it all. PLAN & PREPARE TO WIN At the earliest opportunity, begin making a plan to successfully defeat the lawsuit. After all, the unfairness stems mostly from the amount of care, skill and effort you have invested in this patient. Prepare to tell your story to a lay jury, comprehensively and persuasively, in understandable terms. Obtain a complete copy of medical records from the hospital or from other providers. Secure your own originals, and make a working copy of all your chart notes, test results, progress notes and any correspondence. CONSTRUCT A CHRONOLOGY Review all records and construct a chronology of pertinent events and results. Keep in mind that any notes or written materials you generated will probably become evidence at trial. In litigation, written records tend to take on more importance since everyone’s recollection of past events are suspect due to fear or litigation bias. Identify what factors influenced your decision to choose one treatment over another. Stick to the facts; not what you might have considered with the benefit of 20:20 hindsight. Do not attempt to augment or change medical records. MEET WITH YOUR ATTORNEY Prepare yourself for meeting and dealing with your defense attorney. Being named a defendant in a lawsuit really “turns the tables.” All of a sudden, your situation is now similar to that of your patient, when the patient first sought your help. Like you as the defendant, your patient was anxious, fearful of the unknown, and forced to maneuver in unfamiliar territory. Your defense attorney, not you, now possesses the critical knowledge, skill and judgment. For physicians who are used to leading and assuming control of each situation, the experience will probably be uncomfortable. PREPARE FOR DEPOSITION Carefully prepare for your deposition. Malpractice cases can be won or lost based solely on a physician’s sworn testimony. Don’t approach your own deposition as a mere formality, thinking you will save your “real” testimony for trial. A treating physician’s relevant, succinct, and credible testimony can support a motion for summary judgment and avoid a lengthy and expensive trial.

CONFRONT YOUR EMOTIONS, HEAD-ON:
Feeling “out of control” is almost a universal response to being served as a defendant in a malpractice lawsuit.

One way to lessen anxiety and to avoid feeling out of control is to assume responsibility for presenting an effective defense. When dealing with defense counsel, keep in mind that no amount of legal training or experience will prepare your attorney to grasp the medical and health issues on the level of a medical professional. Assume the role of teacher and instructor, with the goal of educating your attorney about all the pertinent issues and circumstances. Predictably, your defense attorney will surprise you by demonstrating familiarity with complex scientific and clinical issues. But, no one knows the medicine, your patient or your treatment plan, as well as you.

As you become more knowledgeable about lawsuits and trials, several aspects of the litigation process will amaze and perhaps unnerve you. Contrary to your expectation, the plaintiff will be able to retain a qualified medical expert witness to criticize both your medical judgment and your clinical management. Although the patient has never paid (directly, or out-of-pocket) for most of the care, insured expenses will be added up and claimed as damages. The fact that you have successfully treated hundreds, even thousands of other patients with similar problems will be ignored as irrelevant and inadmissible. On the other hand, the jury will never learn about MICRA’s $250,000 cap on pain and suffering until after their verdict is rendered. These and other confusing and obscure rules and procedures will convince you that the courtroom is indeed a “strange new world” for most physicians.

Will any of these suggestions save you from suffering the shock, disbelief and outrage that often results from being sued? Probably not! But having a plan to deal with the situation and channeling your energies into productive and rational responses will help you to regain a sense of control. Ultimately, the force and persuasive effect of your own testimony will bear heavily on the outcome. These recommendations will help you to “help yourself” toward a successful defense.