How to Survive a Malpractice Lawsuit
Robert M. Campbell, Jr. , M.D.
Your office secretary walks back to get your signature for a letter that arrived. You notice the certified mail green signature return card taped to the back of the letter, and that it is from a law firm. You are concerned. You open it up, and it is a request for records. For some reason you know it’s not about somebody thinking about suing the driver of the car that hit your patient, or suing the store where the patient fell, but it may be about an alleged bad patient outcome. You don’t know at this point.
It may be a complicated patient who is upset because outcome was not optimal. Or a patient you don’t quite remember, who had a concern you thought minor, but they thought major enough to go see an attorney. It may be months after you send the records in before you find out what it is all about.
It may be clear from the start. The letter may have some allegations of malpractice mentioned in the request for records. Your worries start immediately.
The next thing you do is to pull the patient records from your files, close your office door, and thoroughly review the charts to try and see what are the basis of the allegations and how defendable your actions appear. You may be reassured by what you read, or you may be worried. Regardless of your impression of the validity of the allegations, just remember that you are completely out of your element in this situation and the smartest thing you can do at this point in time is to notify your malpractice insurance carrier, turn the matter over to them and the defense attorney they assign to your case.
Don’t take it personally.
Any plaintiff or defense attorney will say this to you about any malpractice suit. Despite the rhetoric on both sides, these suits are nothing but a business transaction in which is a possibility of a financial gain for the patient and their attorney, moderate business risk to the plaintiff attorney, and unlimited risk for you, with guaranteed economic losses for lost time at work defending the suit, emotional wear and tear on both you and your family, and probable further economic losses from increased malpractice insurance premiums regardless of outcome. You have become a pawn in the American legal system.
In fairness, the patient motives for filing a malpractice lawsuit are complicated. Patients often go to an attorney with a sense of anger over their outcome and frustration that no one can explain what happened, or they feel that the facts are being kept from them. The contingency fee system of the American legal system reduces the issues of a lawsuit to a simple financial issue for the plaintiff attorney: How well can the facts of the allegations be portrayed in order to convince a jury to provide the maximum award possible?
The malpractice system is erratic, unpredictable, and data supports certain conclusions. Bad outcomes due to clear physician negligence are sometimes not compensated by the courts while patients with less than perfect outcomes and no clear liability issues may go on to collect large awards. One thing is certain. Once the patient enters the attorney’s office, then likely the attitude of the patient towards the physician will change for the worse. The lawyers will be sympathetic with the feelings of their potential client, but have strong economic reasons to flair their feelings.
I was in the elevator of an office building one day when several attorneys got on. Not realizing I was a physician, one joked with another about how a client had just visited his office and “they weren’t mad when they walked in, but I made sure they were mad by the time they left”. Everybody laughed in the elevator. Except me.
With the contingency fee system, a patient filing a lawsuit for malpractice has a strong incentive to enter the legal lottery game. Unlike state lotteries, where tickets cost at least one dollar and the odds are phenomenally low for winning large sums of money, the lawsuit lottery is free with much better odds. In Houston years ago, there was a billboard sign showing an attorney holding up a telethon-type oversized check in front of him with the caption reading “ Have you picked up your check today?”
There is mounting concern in many states over the effect of lawsuit abuse on society and some states, such as Texas, have successfully applied caps on damages, but overall the system continues to have the potential for abuse. You have a reasonable chance of surviving a malpractice lawsuit intact, but it will take a lot of work, time, and money on your part.
Meet with your defense attorney as soon as possible and share every fact and impression you have about the case. Their job is to get you through this, and, if you hold anything back, it will be discovered later with harmful effects on your case.
Once there is threat of litigation, it is best to terminate the relationship with the patient and transfer their care to another practitioner. Each state may have different rules, but usually there has to be written notification that you are severing the patient-physician relationship, offer 45 days of continuous support for emergencies, and provide names of other practitioners who are capable of providing the same services that you can provide. Be very careful to obey all rules in this matter for your state.
The patient’s attorney will review all records available and will usually forward them to an expert witness for review. If the expert witness finds the case to be weak with regard to medical facts, the patient’s attorney will usually make a business decision that the cost of the lawsuit does not justify the risk of not winning an award. If this happens, you will receive a very polite letter from the attorney that the lawsuit is not going to be filed and then the final quote of the letter is usually “This proves that the system works.” If the patient’s attorney feels the medical facts due support demanding damages, then the server will show up at your office and politely give you a letter notifying you that you have been sued, along with a copy of the lawsuit petition.
Once served, do not read the lawsuit in public. Take it back into your office, close the door, take a deep breath, and review it carefully. The medical facts of the case will be translated into as many allegations of poor care as possible and they may seem totally outrageous to you, but remember that the plaintiff attorney is totally immune to charges of slander within the legal system. Their job is to convince a jury that you did something wrong, harmed a patient in some fashion, and your punishment is to be a large financial fine that goes to the patient with their attorney reimbursed for legal fees and contingency fees.
Try not to take it personally, but any good physician would obviously take it personally. Make an appointment with your defense attorney as soon as possible and the feedback you get from them will help you put things in perspective. Seek emotional support from family and friends about the stress and worry that this lawsuit is causing you, but be very careful not to divulge any details about the medical facts or the allegations of the lawsuit. Things you say, especially trying to second guess yourself on your actions, may end up in the office of the plaintiff’s attorney with serious effect on your case. Do talk about your feelings, and especially share this with your spouse.
Sometimes lawsuits can be aborted by filing motion for summary judgment. If the case is dismissed, especially if it is dismissed with prejudice ( which means it cannot be filed again) you are home free. Sometimes the judge is sympathetic toward even a weak case, and the lawsuit proceeds to wind itself slowly through the system. Even though you may feel it is a weak case, if it proceeds, take it extremely seriously and work hard with your lawyer through the process.
Keep in close contact with your defense attorney. You will be asked to give a deposition in which you will be under oath and responding to questions from both the plaintiff attorney and your own defense attorney. You will be asked your version of the facts of the case and will examined critically about the relevance to standard of care. The plaintiff’s attorney will have spent countless hours reviewing records and pertinent literature. If you are not prepared, you will appear foolish during this deposition, and it will hurt your case. At minimum, be completely familiar with all details of the records, meet with your defense attorney to discover the weak issues in the records that may be brought up during the deposition, and be well prepared on the day of the deposition.
Think carefully before answering any question in the deposition setting. This allows you time to analyze the question and think of a short, succinct, accurate response. A short delay also gives your attorneys time to object if the question is unsuitable. One tactic of attorneys is to ask questions with numerous statement of fact that may contradict each other and may end the question with the phrase, “Isn’t this so, doctor?” It is helpful to dissect the question and separate out the elements with which you agree with and elements with which you do not, and then answer to each separately. Remember that your answers will be recorded, are a permanent part of public record, and will need to be defended if the lawsuit proceeds to trial.
As some point, possibly years after the initial lawsuit was filed, then the jury trial is scheduled. Your defense attorney will advise you that you will need to clear your schedule for two weeks minimum and will spend time going over the facts with you prior to trial, with coaching as to be the best witness possible. You are going to lose at least two weeks of clinical income due to this and do not be surprised if the loss is much higher. It is perfectly acceptable for the plaintiff’s attorney to request a postponement of trial, known as continuance, right before the trial was scheduled to start. The usual reason given is that litigation for another case is extended and interfering with the start of the new trial. Months later, your re-scheduled trial is due to begin with another two weeks cancelled, and then another continuance may be requested. Usually when it gets past two continuances, your defense attorney can rightfully complain to the judge that things need to go forth and a solid date can be obtained.
Read all depositions given prior to trial, but especially be completely familiar with your own. If you are vague, or said something that can be misleading, discuss this with your attorney ahead of time so a well though out answer is available during trial. Try not to schedule big surgical cases right before , and request as much emotional support as possible from your family and friends. Sometimes that doesn’t work out as planned. One physician I know ended up with his wife filing for divorce a week before his malpractice trial. He did fine, but the stress level during trial was extraordinary.
Often right before trial, you will receive word from the plaintiff attorney that he is willing to settle for the limits of your malpractice insurance. If your malpractice policy permits you to have the final say about these matters, then it is a personal decision for you. Personally I feel that if you did nothing wrong, consider fighting it. Just remember that if you settle, your name will be in the national databank permanently after that for the settlement and you will be asked to explain it for the rest of your career when applying for credentials at hospitals or other facilities. If your malpractice insurance carrier has the last say, then they will make a business decision based on the merit of the case.
Jury selection is a critical component of a malpractice jury trial. To some extent, each attorney can dismiss a potential juror without reason. Any citizen in the courtroom who is glaring at you probably needs to be considered for dismissal. Jurors interviewed by the court are determined to have any issues that might prejudice them as functioning as fair jurors, but your job is to assist your attorneys in trying to have the most impartial jury possible for your own trial.
Work closely with your attorneys during trial, helping them form questions for the plaintiff as well as any expert witness that may be called upon to testify. Be an active player in this drama. Your attorneys will know what they are doing, but don’t be afraid to give them feedback about issues they can use.
The most important part of your trial is your testimony. A good plaintiff attorney will try to get your to disagree with your own deposition. Know what you said “stone cold” so you can politely disagree with him or her if this occurs. Also be careful about what is defined as “standard of care”. One common ploy is to ask you to agree that a certain textbook or journal article is an authoritative source. Don’t bite on this one. If you do agree to this, then you will have to support any fact in the authoritative work whether you agree to it or not.
It is important not to speak to the attorney, but to speak to the jury in clear and understandable terms for layman. Your job is not to impress the jury, but to provide them with information to make an important decision about your future. Plaintiff’s attorneys will often go into theatrics with sarcastic language against you during trial. Don’t take the bait, although he or she can get away with it in the courtroom, you are held to a higher standard and it will hurt your case if you get into a bickering fight with the attorney. Your own defense attorney will carefully be taking notes during the initial examination and, during cross examination, will set the record straight for you.
Don’t get upset if your attorneys are talking casually during court recesses. During these times, comments such as “we scored points for the appeal”, will be heard. There is always the possibility that you will lose your malpractice suit, despite the merits of the case, and it will go on to appeal. You will be required to post 10% of the requested reward to go forth to the appeal. If the award is large, this may require declaration of personal bankruptcy. Remember that this is “nothing personal”.
Once the jury is in recess, it is a waiting game. Jurors can ask for additional records and other material for their deliberations. Only get nervous if they request a calculator. When they return with the verdict, the proceedings are different from the usual criminal trials portrayed in the media. The court provides a list of questions to the jurors which addresses each fact of the allegations, and whether they are meritorious or not. The court will read out each question and the jury will answer yes or no to each. Hopefully, they will respond negative to all the questions and this means that you are found “not guilty”. You’ve won. Technically.
At this point, you have survived a malpractice lawsuit. An appeal may be filed, but once the deadlines passes without action and your attorney gives you the good news, it is finally over. Once it is a closed case, feel free to discuss any details with colleagues or friends. You can never get back the time lost , or recover the economic losses from loss of practice time, and the emotional strain will likely change you in some way. There is statistical probability that this will happen again, but the best defense is to do your best and document as thoroughly as possible to make your actions defendable later in a court of law. Remember that it happens virtually to everyone at some point, so you have plenty of company.
As they say, what doesn’t kill you makes you stronger, so surviving a malpractice lawsuit can be a learning experience. Be sympathetic with peers with their time comes. Good Luck!
Dr. Robert Campbell is currently a professor of orthopaedics at the University of Texas Health Science Center at San Antonio. He spent 4 years of practice in the US Army and 6 years in private practice.
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