A Lawsuit Can Strike Without Warning
If you haven’t yet been sued for medical malpractice, the sad truth is that you very well may be at some point in your career. By age 65, 75% of physicians in low-risk specialties will have been sued, compared with 99% of physicians in high-risk specialties, according to results of a study published in the New England Journal of Medicine..
Being accused of malpractice is one of the most traumatic experiences any physician can face. Beyond the financial risk, the threat to your reputation can affect the way you practice and interact with patients for the rest of your career.
We’ve talked with leading defense attorneys and liability insurance executives to come up with these 8 specific steps physicians can take to help themselves in a malpractice suit.
1. Call Your Insurer at the First Hint of Trouble
If you suspect that a patient is thinking of suing, contact your insurance carrier as soon as possible. The insurer will assign a claims representative to help guide you through the litigation process. He’ll advise that you never agree to speak “informally” to a plaintiff’s attorney. That could be a trap to get you to say something that could be used against you.
If you’re sued, the carrier will assign an attorney. You’ll be asked to provide and interpret medical records and help identify expert witnesses. Assemble all available records about your patient’s treatment.
2. Avoid the Temptation to Alter Patient Records
Insurers say the biggest mistake physicians can make is to alter their records. “Do not ‘supplement,’ ‘clarify,’ ‘complete,’ or ‘reconstruct’ your records. Any attempt to change them will probably be discovered by the plaintiff’s attorney and can compromise your credibility,” according to The Physician Defendant, a litigation handbook prepared by ISMIE Mutual Insurance Company, which insures more than half of Illinois doctors..
Many otherwise defensible cases must be settled because of poor documentation. Alterations or missing records will automatically destroy most chances to defend the claim.
3. Practice Your Deposition Testimony
Before trial, each side exchanges information about evidence and possible witnesses, including written questions and answers.
A deposition is a testimony given under oath before trial. It often functions as a practice run of the actual trial.
Each side’s strengths and weaknesses are revealed. If you are perceived as confused, arrogant, or less than credible, the plaintiff can learn how to attack your testimony at trial. That’s why your insurer and attorney will spend many hours preparing you for the deposition.
The patient’s attorney will ask about your background and training. His or her questions may be accusatory. This is often done to gain a tactical advantage.
“You can neutralize this tactic by keeping your emotions under control and working with your attorney to prepare appropriate answers.”
4. Help Your Attorney Discredit the Plaintiff’s Case
Your attorney will count on you to explain any discrepancies in testimony from the plaintiff and his expert witnesses. Make sure to attend all depositions of the plaintiff and expert witnesses. “Your presence may inhibit those testifying from exaggerating and perhaps cause them to reassess their opinions,” the ISMIE handbook states.
Study the patient’s records and medical literature about the case. You’ll be expected to explain your rationale in treating the patient, especially if what you did varies from established practice guidelines. Ilene R. Brenner, MD, an emergency physician in Atlanta and author of How to Survive a Medical Malpractice Lawsuit (Wiley-Blackwell), says that the deposition is an adversarial process. Anything you say can be used against you. Ask for clarification if you don’t fully understand a question. If a question has two or more parts, give your attorney a couple of seconds to object, says Dr. Brenner.
“If a question is preceded by a long-winded statement, ask for clarification as to what the question was,” Dr. Brenner recommends. Don’t get sucked into accepting a question with a false premise.
5. Control Your Temper; Don’t Let Yourself Be Provoked
Defense attorneys say it’s essential that you never lose control of your emotions. Even if the plaintiff’s attorney badgers and antagonizes you, resist the temptation to answer back in kind. The attorney is trying to see how you react under pressure. If you react with anger, the attorney may try to get you to respond the same way in front of a jury.
Prior to the trial, you will have prepared with your attorney. If you or your attorney has noted that you tend to get hot under the collar, be sure to practice keeping calm and giving an objective response. Although you may be in the right, reacting in anger positions you as someone who acts impulsively rather than doing what is best for the patient.
Ask to consult the record if you have any doubt about a question. Be honest if you don’t recall something. Don’t say that you acknowledge a medical text as fully authoritative unless you’re satisfied that it is.
6. Help Your Attorney Choose an Expert for Your Side
Expert witnesses for each side will testify about whether the defendant doctor breached the standard of care and what impact that had on the patient.
“Unfortunately, the standard of care is not a uniform measure and is imposed on doctors rather arbitrarily,” according to A Practitioner’s Primer from the Physician Insurers Association of America (PIAA).  “The standard of care “may be dictated by national guidelines, recognized authoritative text, hospital protocols and managed care organizations.”
The jury has to determine which of these “dueling experts” makes a better argument. Your expertise will be valuable in helping your attorney select an expert who can make the strongest case to a jury on your behalf.
7. Be Realistic About Whether to Settle or Fight
Most insurers rely on a committee of physicians to review depositions, medical records, and expert advice and then recommend whether to defend or settle the claim.
How did you and expert witnesses come across during the depositions? An insurer may decide that they couldn’t take the chance of putting the doctor in front of a jury even though the medical facts would have supported the physician’s care. The doctor’s angry or defensive attitude might have inflamed the jury.
A jury could also be swayed by sympathy for the plaintiff who has been seriously injured. Insurers may try to settle a catastrophic case if they fear that a “runaway” verdict could exceed policy limits.
In most cases, carriers won’t settle a claim without the doctor’s consent. Still, refusing to settle a meritorious case can come back to bite you.
“The consent-to-settle clause in the policy can cost the insurer significant additional expense in defending the claim when it feels the claim has merit. However, having that clause can provide the doctor with added peace of mind when facing stressful litigation.”
Does your insurance policy contain a “hammer” clause? This allows the carrier to decide whether a case should be settled. If a doctor won’t agree, the insurer will limit its coverage to the amount of the originally proposed settlement. If the actual award is higher, the defendant doctor is responsible for the amount above that offer.
8. Testify as if You’re Explaining Medicine to a Patient
It could take years before a malpractice suit gets to trial. Your testimony under hostile questioning could decide who wins. Always face the jury and speak as you would when explaining medicine to a patient.
“If you can teach the jury something, they are more likely to trust your judgment and to find for the defense,” says Dr. Ilene Brenner. “Use lay terms and language, even when discussing complicated medical terminology.”
Don’t get rattled when the plaintiff’s attorney interrupts your answers in mid-sentence. It’s a trial tactic. The same applies if the attorney insists on a yes-or-no answer. Your lawyer will probably object and ask the judge that you be permitted to provide a more detailed answer.
Getting sued for malpractice can be devastating, but a doctor can help tip the scales in his or her favor. You can be of great value to your attorney and to your own case if you step up and take the right actions to help you prevail in the lawsuit.
Medscape Business of Medicine © 2014 WebMD, LLC
Cite this article: 8 Steps to Winning Your Malpractice Lawsuit. Medscape. Jul 15, 2014.
Jena AP, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-663. http://www.nejm.org/doi/full/10.1056/NEJMsa1012370 Accessed June 6, 2014.
The Physician Defendant. ISMIE Mutual Insurance Company. www.ismie.com
Medical Professional Liability Insurance: A Practitioner’s Primer. Physician Insurers Association of America: Rockville, MD; 2001.