It’s late Friday afternoon, and after a long week, you’re looking forward to a relaxing weekend. Your last patient of the day is just leaving, but holds the door for a uniformed officer holding an envelope. The officer walks up to your receptionist, Lisa, and asks for Dr. Miller. Lisa looks expectantly at you and the man asks, “Are you Dr. Miller?” After a hesitant “yes,” you suddenly find the envelope in your hands as the sheriff turns and disappears through the door. You’ve been served with a lawsuit – what do you do now?
We want to assure you that you are not alone. Most healthcare providers will likely face at least one claim in their career, although at the moment you look at those papers, you are justifiably overwhelmed and focused on concerns about the effect on you and your practice. If you previously took the steps
to carefully and thoroughly document your care, your chart should provide you with a strong defense in the eyes of the judge or jury. Realistically, though, once a lawsuit is filed, it can take years to resolve – so prepare yourself for a long road. Most importantly, be an active member of your defense team. Your involvement will make a significant, positive difference.
First, it is critical to contact your professional liability insurance carrier and promptly get the papers that you received to them. In most jurisdictions, the documents that initiate the lawsuit may be a Writ of Summons or a Complaint. The Writ of Summons provides notice that a lawsuit has been filed, but usually does not contain any factual allegations. The Complaint sets forth the factual allegations of claims of negligence. There are set time periods to respond to these, and you do not want to jeopardize either your coverage with your insurer or the defense of your lawsuit by failing to act timely. Prompt notification to your insurer, or the individual in charge of your insurance, is necessary.
Next, keep the information with respect to the case private and confidential. Do not call the patient, or attempt a well-meaning email or text. Do not contact the patient’s lawyer either. Frankly, don’t discuss the facts relevant to the lawsuit withanyone until you have spoken with your professional liability insurance carrier. Your carrier will assign your case to an experienced malpractice defense attorney, and you will have the opportunity to sit down with your attorney and fully discuss the facts, as well as your questions and concerns about the litigation process. If you’re not satisfied with the counsel provided by your insurance carrier, you have the right to seek your own, private counsel, but you will have to pay those costs yourself.
Be sure to take measures to secure the patient’s chart. Find out how to “lock down” the electronic record, and if you have any records in a paper chart, it’s advisable to pull it and place it in a secure location. Absolutely do not make any changes to the record. This is not the time to add a note to try to clarify your treatment, add details of an informed consent discussion or attempt to document care that is not already reflected in the records. Any additions or revisions made to the record after a lawsuit is filed will be scrutinized as self-serving, and are usually detrimental to the defense of your case. Charts that look suspicious get an “FBI-level” document review.
It is important to remember that the allegations set forth in the Complaint are simply that: allegations. While they are often frustrating to read, remember that the Complaint is the opportunity for the patient (now called the plaintiff) to present his or her side of the story. Although there must be a good faith basis for each allegation, the narrative will obviously be slanted in favor of the plaintiff. Don’t be surprised if the description is taken to the extreme.
Finally, after you take the appropriate steps, become a member of your defense team. The legal details are for your attorney to handle, and you have patients to care for; however, it is crucial that you take the time to prepare for your deposition and review the expert’s credentials. Be available to your lawyer to help prepare your defense. While this experience may shake your confidence a bit, and seem overwhelming, try not to let it affect your practice or your life. Malpractice claims are, unfortunately, part of healthcare practice, but they also provide an opportunity to examine your processes andmake adjustments
to lessen future risk and improve patient care.
James W. Saxton, Esq., is the CEO and co-founder of Saxton & Stump, LLC. He has sustained an active litigation practice for more than 30 years, representing hospitals and physicians before state and federal courts in professional liability and complex litigation matters. Leveraging his extensive experience as a litigator, he advises physicians, hospitals and long-term care facilities on understanding and reducing their professional liability risk. He can be reached at firstname.lastname@example.org.
Darlene K. King, Esq., is Senior Counsel, Risk Management and Quality Assurance Group Chair at Saxton & Stump, LLC. With 20 years of healthcare litigation experience, Darlene concentrates her practice in the representation of hospitals, doctors and healthcare professionals in healthcare litigation, including medical malpractice defense. She can be reached at email@example.com.