In danger of being sued? Don't go into denial
Take action before the lawsuit is filed
If it ever happens to you, it's a moment you'll never forgetbeing served with papers from a patient's attorney. What do you do first?
Actually, the time to take action is before you are sued. According to Justin Greenfelder, an associate attorney in Canton, OH-based Buckingham, Doolittle & Burroughs, ED physicians need to recognize the warning signs that point toward a lawsuit potentially being filed. These include an unexpected clinical outcome, delayed diagnosis or treatment, equipment failure, or an angry patient or family member.
"Obviously, this is not an exact science," Greenfelder acknowledges. "Bad outcomes don't always result in lawsuits, and heroic efforts sometimes go punished."
Instead of going into denial if you suspect you may be sued, Greenfelder says that you should take these steps:
1. Review the medical record to make sure that it is timely, accurate, and complete.
2. Contact your group's insurance carrier to put it on notice.
3. Consider discussing the potential suit with the hospital's risk manager or legal counsel, since the hospital also may be involved as a defendant. "However, the advisability of doing so should be a joint decision made by the physician and the group's legal counsel," says Greenfelder.
Jill M. Steinberg, a shareholder at Memphis, TN-based Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., recommends that any ED physician who believes that he or she is about to be sued should immediately inform the insurance company of a potential claim.
"If indeed the physician has committed malpractice, there might be an opportunity to settle a matter early without suit being filed," says Steinberg. If the physician does not have any concerns regarding care, then an insurance company lawyer will be able to give advice or reassurance.
However, she adds, resist any urge to blame other caregivers for any adverse result that occurred. Often, once a suit is filed, all of the caregivers will be sued. "Thus, telling a patient that they have a claim against another doctor or hospital may come back to haunt the doctor," says Steinberg.
Resist urge to add to your documentation
Joseph J. Feltes, a partner with Buckingham, Doolittle & Burroughs, says that a good, contemporaneously-prepared medical record is the best defense. "There may be times, shortly after treatment in the ED, that the ED physician may want to add a clarifying addendum," he notes.
However, it is important that the addendum be dated when it actually was written and not, under any circumstances, be backdated to make it appear that it had been part of the record that was created contemporaneously with the treatment. "That could lead to allegations of fraud," warns Feltes.
Feltes adds that it is not advisable to create an addendum weeks or months after treatment, and it is never advisable to create an addendum after receiving notice of an intent to sue or the actual filing of a lawsuit.
"An elaborate addendum may ironically make the ED physician more susceptible to difficult questions in cross examination," explains Feltes. "Even worse, a jury may view an elaborate addendum as self-serving, which detracts from the physician's credibility."
ED physicians should not prepare personal notes, reflections, diaries, memoranda, mea culpas, or finger-pointing in any media, including paper or computer-generated documents and e-mails. "These are not protected, are discoverable by the plaintiff's attorney, and can all be used in cross examination against the physician," says Feltes.
Upon being served either with a notice of the intent to sue, or the actual service of the summons and complaint, your first phone call should be to your malpractice insurance carrier, which at that time will likely assign you an attorney. If, in the meantime, you have questions that need immediate attention, contact your group's legal counsel.
"It also may be prudent to contact the hospital's risk manager or legal counsel, but only after consultation with the carrier's or group's attorney," says Feltes. "Conversation with the hospital's risk manager or legal counsel may not be privileged."
3 Dos and Don'ts to Heed if You're Sued According to Ken Braxton, a health care attorney at Dallas, TX-based Stewart Stimmel LLP, ED physicians, when notified of a possible lawsuit or claim, should avoid all of the following actions: 1. Never alter documentation when notified of a possible lawsuit or claim. "The patient's attorney probably already has the medical records, so any alteration or addendum will be immediately used to allege a cover up," says Braxton. 2. Never call the patient or their attorney to try to talk them out of the lawsuit. "This amounts to free discovery for the attorney, who will more than likely let the ED physician 'spill their guts,'" says Braxton. 3. Never talk to other providers involved with the care to the patient without an attorney present, other than in a peer review setting. Braxton cautions, "All non-peer review and non-attorney conversations with other providers are subject to discovery." Here are three things that Braxton recommends doing if you are sued: 1. Immediately notify your insurance carrier to get advice on how to respond upon receipt of the notice. 2. Tell the director of the ED, so that the medical records are secured. 3. Create a personal file that includes the ED physician's correspondence and lawsuit documents and a copy of the patient's chart. |
Don't do your own investigating
Avoid doing these three things, says Feltes: Pointing fingers at other caregivers, discussing the case with hospital personnel or colleagues, and talking directly to the patient's family after a suit is filed.
Above all, resist any temptation to conduct your own, non-privileged "investigation" by discussing the matter with colleagues or staff, either in person, by phone, or in e-mails. "These conversations often entail speculation and opinions that may not be based on the facts, and which may be discoverable by the plaintiff's attorney, who may use them to the detriment of all," warns Feltes.
"We all remember those scenes in TV crime shows where the accused is given his Miranda rightsanything that you say can and will be used against you by the other side in a court of law," says Feltes. "The same applies to non-privileged conversations."
Sources
Joseph J. Feltes, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. E-mail: JFeltes@BDBLAW.com.
Jill M. Steinberg, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Memphis, TN. Phone: (901) 577-2234. E-mail: jsteinberg@bakerdonelson.com.