Malpractice Claims

Few things in a doctor’s professional life generate more stress and disruption than an allegation of medical malpractice. A physician’s attitude, demeanor, appearance, and conduct during a deposition or trial are as important as the accuracy and quality of the testimony. In all but the most obviously frivolous malpractice lawsuits, the effects on the doctor’s morale and self-esteem are significant. You may experience symptoms that range from controlled anger or disabling emotional distress to severe physical problems or paralyzing depression. This information may help you cope as well as understand these legal proceedings and your role in them.

Legal Procedures

A physician’s cooperation is essential to a successful claim defense. You can expect the following procedures and events to occur if a claim is filed against you. Once you notify your insurer of a claim, you will be contacted by your claims representative to discuss the claim. Every alleged claim is serious right from the beginning. It is, however, often too early at this initial stage to make a complete determination of the complexity of a case. Notifying your insurer of a claim and discussing the case with your claims representative are crucial first steps.

Experience has shown that effective claims handling — like good diagnostic work — requires a thorough work-up. Throughout this entire legal process, it is critically important that you only discuss the case with your claims representative or your defense attorney. Though this may seem arbitrary and unreasonably restrictive, there are good reasons to control this information. If you discuss your case with anyone other than your claims representative and defense attorney, you may inadvertently jeopardize your defense case and involve the person with whom you discussed your case as a witness.

Request for Copies of Your Records

The earliest indication of a lawsuit may be a request for medical records from either the plaintiff’s attorney or the patient. Although patients have a legal right to see their medical records, a signed authorization is required to release the record. The Doctors Company does not recommend that you refuse a request for medical records except in special circumstances, such as releasing records to a patient that pertain to the patient’s mental illness. A request for medical records is not necessarily an indication of an imminent malpractice action. It may simply be part of an attorney’s investigation of an accident or industrial compensation claim. If you suspect that the request is related to a potential medical malpractice action that may implicate you, notify your insurer immediately.

Notice of a Claim

A plaintiff’s decision to pursue a claim against you may generate a notification to you of the plaintiff’s intent to sue. Notice to you may simply be a letter from the plaintiff’s attorney that indicates the plaintiff’s intent to sue. This may be triggered by statutory requirements, such as California’s 90-day notice of intent to sue. Notice from a screening panel may also be the first notification you receive of a possible claim or lawsuit. Should you receive any such notice, contact your insurer immediately.

Summons and Complaint

If you receive a summons and complaint (a lawsuit), these legal documents require a formal response within a prescribed time limit, regardless of your belief in the merit of the case. Failure to respond appropriately may jeopardize your defense or result in a default judgment against you.

After you notify your insurer, a defense attorney specializing in medical malpractice defense will be assigned to your case. He or she will be in contact to discuss the allegations and to provide information on what happens next. Your attorney will be responsible for filing a response to the summons and complaint.

Discovery

During discovery, plaintiff and defense attorneys review all records and documents related to a case to fully evaluate the claim. Interrogatories and depositions are two important parts of the discovery process.

Interrogatories

Designed to further develop the facts or the legal and medical foundation of a case, interrogatories are written questions sent to you by the plaintiff’s attorney. Your responses are legally admissible in court, so it is imperative that you review them with your defense attorney. Interrogatories are often numerous, repetitious, and can be intensely irritating. The same question is often asked in a number of ways to determine if your responses are consistent. Take every question seriously. Above all, refrain from angry or flippant responses.

Deposition Procedure

Although a deposition usually takes place in the informal setting of the attorney’s office or your own office, do not be lulled into the misconception that the deposition is an insignificant event in the legal process. On the contrary, testimony obtained by way of deposition during this discovery phase of any case frequently proves to be the single most important event of the pretrial process and crucial to the outcome of the case.

A deposition consists of testimony taken from a witness or party, under oath, transcribed by a court reporter. All parties to a lawsuit are provided formal, written notice of each deposition to be taken so that each attorney and his or her client can attend, should the client so choose. Your deposition, as the defendant physician, not only serves as an investigative tool for the plaintiff’s attorney, but it also provides a vital opportunity in advance of the trial for your defense attorney to evaluate you. This assessment has a major influence on the defense attorney’s perceptions of your prospects for prevailing at trial and on the evaluation of a case for settlement. In the deposition phase of a case, you should convey the most favorable impression possible. This means you should appear for the deposition well prepared about the facts of the patient’s care. You should convey an air of knowledge and humility, not one of arrogance or hostility, and respond to questions in a direct and confident manner.

Deposition Preparation

From the moment a lawsuit is threatened, keep in mind that you may be required to give testimony via deposition. Whatever you say to another person and whatever that person says to you concerning an incident that becomes the subject of a lawsuit can later become a subject of inquiry during your deposition. You may also be questioned about any research of the medical literature you have performed in advance of your deposition or in preparation for testifying. Only your confidential discussions and written communications with your attorney or claims representative may prove to be privileged and not subject to later discovery by opposing counsel.

Ongoing communication with your defense attorney is essential while the lawsuit is pending. You should make an effort to determine what your attorney has learned concerning the allegations made against you and the facts upon which those allegations are based. Your attorney may decide that it is advisable to obtain the patient’s deposition testimony in advance of your own and to have you review that testimony in preparation for your own deposition. Your defense attorney may also suggest that you review certain medical records that have been obtained through the discovery process to better acquaint you with the care the patient has received from other physicians.

Your attorney may also ask for your expertise on certain medical issues to further his or her own understanding of the case. Only through your willingness to provide your time will you ensure that your case is being adequately investigated and properly prepared for trial. In advance of your deposition, your attorney will schedule a conference to review questions you may be asked by the plaintiff’s attorney. Your attorney will also advise you of the best approach to use in answering these questions.

Deposition Testimony

At the predeposition conference, your attorney will inform you about examination techniques you may expect and the approaches available to you in formulating appropriate responses. Your responses during testimony should be brief, concise, and delivered in a calm and thoughtful manner. Avoid guessing in response to any question when you are uncertain of the answer. It is preferable to respond, “I do not know” or “I do not recall.” Above all, your testimony must be truthful. It is not your obligation, however, to volunteer information during the deposition. Volunteered information only serves to unnecessarily educate opposing attorneys.

Do not misstate matters of fact at deposition in an effort to enhance your position in the lawsuit. You should also be aware that unless the plaintiff or defense attorney notes that statements are to be off the record, all comments made during the course of the deposition will appear in the deposition record. During your deposition, the plaintiff’s attorney will seek to elicit answers that are most advantageous to the plaintiff’s position in the case. Respond only to the question asked, not to the manner in which it is asked. Your function, with your attorney’s guidance, should be to provide truthful answers phrased in a way that least benefits the plaintiff’s position and most enhances your own.

During your deposition, your attorney may perceive that a question asked of you is ambiguous or subject to legal objection for some other reason. You should allow your attorney the opportunity to state his or her objection on the record, and you should take the objection into consideration when formulating your answer. The objection itself may alert you to an ambiguity or hidden meaning in the question that is not otherwise readily apparent. Such objections frequently serve to avert answers that would otherwise be given by the witness without a full understanding of the question. Your attorney can instruct you not to answer a question that he or she believes is an effort to elicit information that is not legally discoverable. Follow your attorney’s instruction in this regard.

Deposition Review

You will receive a copy of your deposition testimony for review. You will be asked to read your deposition and to provide your attorney with any suggested changes or corrections that you feel are necessary to ensure accuracy in the transcript. It is important to avoid inadvertent mistakes in your testimony, and no corrections should be made to the deposition transcript without first obtaining your attorney’s approval. Keep in mind that your deposition can be an important learning experience for you and a dress rehearsal for the potential trial.

Coping With the Stress of a Malpractice Claim

You may wish to consult a psychiatrist or other mental health professional if you or those you respect recognize your need for specialized counseling and treatment.