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Defending Yourself Against a Medical Malpractice Claim

Defending Yourself Against a Medical Malpractice Claim

One afternoon about a decade ago, cardiologist Evan Levine was seeing patients in his office when an unexpected visitor interrupted his work: a process server. "Bingo," he says, "that's how it started." Levine learned a patient was suing him for malpractice, and like many other physicians who receive similar news, it sent him on an emotional tailspin. "I was hurt, I was pissed off for being sued, and I was worried about the consequences," Levine says. "Physicians are fearful, out of their skin fearful of ever getting sued, but 10 years ago that was [me] especially." Levine's lawsuit lasted five years and ultimately resulted in a settlement.

As a result of the experience, Levine says he learned a valuable lesson. "Everyone, no matter how good they are, will eventually be sued ... I should have just accepted it as part of doing business, turned it around and forgotten about it, and went about seeing my patients."

Levine is exactly right. Statistics show that most of you will be sued at least once during your careers. If it does happen to you, experts say controlling your emotions, continuing to practice medicine as usual, and dealing with the lawsuit appropriately will help minimize the negative effect it has on your reputation and/or your wallet.

Here's our guide to ensuring that if that call to action heads your way someday — "You've been served!" — you know exactly how to react and what to do.

Stay calm

Whether you are served through certified mail, a knock on your door, a phone call from the institution for which you work, or a visit to your office as Levine was, learning about a lawsuit against you can unnerve even the most level-headed physician. Don't let it, says Houston-based malpractice attorney Don Karotkin. "Sometimes people panic," he says. "…When people panic they tend to do really crazy and self-destructive things."

Inappropriate discussion of the case nears the top of the list of damaging reactions. It's human nature that a physician undergoing something as stressful as a lawsuit would want to talk about it with trusted colleagues and confidantes, but any non-privileged conversation you engage in regarding the specifics of the case — with friends, fellow staff members, or partners — can later be used against you, Karotkin says. If you believe you need to disclose details of the lawsuit for legitimate reasons (for instance, if you're dealing with a hospital credentialing committee), consult your attorney first. "The doctor should not communicate with anyone whomsoever except his lawyer and his insurance company," Karotkin says. "There are no exceptions to this."

Keep in mind the plaintiff's attorney might try to "trap" you into saying something about the case you will regret later, Karotkin says. For instance, he might ask you to contact him to discuss things, or he might say he wants to hear your side of the story. Don't fall for that, Karotkin says. "Nothing the doctor says is ever going to be used to his advantage so there's absolutely no reason and no incentive to communicate with this other lawyer."

Another common reaction is rushing to review the plaintiff's medical chart. Resist the urge, says Lori Abel Meyerhoffer, a board-certified internist and medical malpractice attorney based in Raleigh, N.C. Your EHR will create an audit trail each time someone accesses a patient record, so reviewing the record immediately after learning of a lawsuit can raise questions from the plaintiff's attorney, such as: "Why did you review it?" or, "Did you determine you did something wrong?" she says. The worst reaction of all is editing or adding notes to the plaintiff's medical chart. This is "inherently suspicious" because it looks like you are covering up mistakes, and it harms your credibility, says Karotkin. "That's a huge gigantic error that practically guarantees that [physician] can't win his lawsuit."

Assemble your team

Here's what you should do upon being served: immediately contact your malpractice insurance carrier. "The earlier the insurance company knows about it and the earlier a lawyer for the doctor gets involved the better," Karotkin says. In fact, he urges, contact your carrier any time you receive communication from a patient or an attorney that suggests even a remote possibility of a future lawsuit. "Doctors aren't trained in the law and they don't know what a threat is and what's not," he says.

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