What to do if you are named in a Malpractice Lawsuit Steven M. Selbst, MD, FAAP
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Origin of a Malpractice Suit
A patient, family member, guardian or patient’s estate will seek advice from an attorney for many different reasons. Usually the child has a bad outcome after medical care is delivered, and the family is angry. They may be upset about the tragic outcome, the long ED wait, a rude staff member, or the ED bill. The attorney will listen to their story, request and review the medical records, and decide to send the case to an “expert” for review. The medical expert will tell the attorney whether he/she believes that the “Standard of Care” was violated. If you are named in a malpractice lawsuit: Do not panic. Being named in a malpractice lawsuit does not mean you are a “bad doctor.” It does not necessarily mean you have done anything wrong. II. Lawsuit Complaint and Answer
The attorney for the plaintiff (the patient or the patient’s guardian) will send a written “complaint” to the physician advising him/her to answer questions about the case by a certain time. This complaint should be taken seriously. Even if you disagree with everything in the complaint (charges are often exaggerated), do not ignore this. The complaint may list statements that are demoralizing or insulting, but remember they are only unproven accusations. Notify your hospital Risk Manager as soon as you receive the complaint (even sooner if you are expecting legal action). Also, notify your malpractice insurance company and make certain that a defense attorney will be assigned. Your attorney, once assigned to the case, will send an “Answer” to the complaint (generally denying the allegations) within a certain time frame. Tell your attorney everything, and help him/her develop the case. Make some recommendations for a possible expert witness for your case. Do not discuss the case with colleagues. Do not call the patient or his/her family. III. Discovery
Discovery is a process that allows each side involved in the lawsuit to learn about the case and the facts that each party will introduce at trial. The Discovery phase may include the following: Interrogatories- These are written questions answered by you and your attorney. Deposition – This is pretrial oral testimony taken under oath. This is usually done in an office setting, with the plaintiff’s attorneys and your defense attorneys. The deposition can be used under certain conditions at trial, so what you say at the deposition can be used against you later. Some are videotaped but most are prepared in written form. The plaintiff’s attorney will usually ask general background
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information from your CV, including licensure and board certification. They will ask about your publications and try to determine if any publications you have written relate to the case at hand. The attorneys will then get into the details of the case and your role in the matter. Depositions of all those involved in the case will come several months later. These will include testimony from the patient’s parents, all nurses involved, the residents and attendings that cared for the child, as well as expert witnesses. Tips for the Deposition: Be prepared. Meet with your attorney well in advance of the deposition. Know the details of the case inside and out. You will have several discussions with your attorney including perhaps a mock deposition where the attorney will help you to anticipate questions and prepare your answers. Some recommend not reviewing the medical literature extensively prior to the deposition. Bring all materials you used to prepare. Your attorney will decide what you actually will bring into the room for the deposition. Listen to the questions carefully before you answer. Answer carefully and honestly. You are under oath. Speak clearly and avoid “uh-huh”. Dress appropriately. Be comfortable, not flashy. Don’t guess at the answer. Ask for the question to be repeated if you do not understand it. Say you don’t remember or you don’t know, if that is the case. You may, and should, use the medical record to help you answer. Don’t volunteer information. Usually a yes or no answer will do. Make the plaintiff’s attorney ask another question rather than giving a long explanation. Listen to your attorney. Follow his/her lead. If your attorney objects to a question, do not answer it until her/she tells you to answer. Pause before you answer any question so your attorney has a chance to object if he/she wishes. Do not always turn to your attorney before answering, as it may appear that you are asking him/her how to answer. Try not to be nervous. Be confident that you are a good doctor and that you know far more medicine than the attorney does. Try not to get angry. The plaintiff’s attorney may try to put you on the defensive and antagonize you. Your attorney should step in if the plaintiff’s attorney is badgering you. You can’t refuse to answer a legitimate question. Don’t be too relaxed and say something in jest that you will regret later.
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Don’t fall for their tricks. The plaintiff’s attorney will often try to put words in your mouth. He/she will use “hypothetical” situations and then try to relate it to your case. Listen to how your answer is paraphrased. The attorney will often come back to the same issue and ask a very similar question later. Don’t admit that any test or article is “authoritative.” There are many good texts but no book is always correct. Carefully review the written deposition when available. You may not alter the substance of your testimony, but spelling or other misinterpretations may be corrected. IV. Settlement or trial – most insurers allow the physician to participate in a decision to settle the case out of court. V. The Trial
Malpractice lawsuits rarely go to trial. If your case proceeds to trial, follow the same rules for the deposition (noted above). However, keep in mind that with the presence of a jury it is more important to speak at a level they understand. Most lawyers recommend turning towards the jury and speaking directly to them when answering. Do not appear arrogant, overly confident, condescending, or angry. Use some medical terms occasionally but translate this for the jury. Avoid facial gestures, winking, smiling. Don’t jump off the witness stand as soon as you think you are finished testifying. Be aware of body language. Again, be prepared. Reread your deposition before trial so you can remain consistent. Try not to shuffle papers too often on the witness stand. Visit the courtroom in advance if possible. Know who-is-who at the trial. Be sympathetic to the patient and family. Stay calm, polite and sincere. Remember the jury is watching you. VI. National Practitioner Data Bank – all payouts to the patient or the patient’s family/estate are reported. The physician has the right to dispute the report in writing, but generally cannot amend the report.
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References: 1. Iseke RJ, George JE, Espinosa JA: ACEP Publication Foresight, Issue 25, January 1993. 2. George JE: The physician under oath: questions and answers to reduce the fear of deposition and trial testimony. Emergency Physician Legal Bulletin. 1991, 2:1-8. 3. Rogers, JT: Risk Management in Emergency Medicine, ACEP publication, 1985. 4. Ludwig S: The physician’s role in family court; In Schwartz Charney, Curry, Ludwig (EDS) Principles and Practice of Clinical Pediatrics, Yearbook Med Pub., Chapter 47B; 1986. 5. Ludwig S, Heiser A, Culler TR, Huhn N: You are subpoenaed. Clin Proc CHNMC 30: 133-147, 1974. 6. Selbst SM, Korin JB: Malpractice Lawsuits – The Legal Process in Preventing Malpractice Lawsuits in Pediatric Emergency Medicine, ACEP, Dallas, TX, 1999:175-183.
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