10 Things to Consider When Served With a Medical Malpractice Lawsuit

As shocking as it may sound, there are national statistics that show that nearly every physician will at some point in their career be named in a claim or suit (see New AMA Report Finds 95 Medical Liability Claims Filed for Every 100 Physicians, August 3, 2010). Getting sued is not something you want to happen, nor is it something that necessarily will happen, but it is a potential reality in today’s medical world. The reasons why people sue are varied and do not always follow a set pattern. Regardless, should the day come that you are sued, it is important to make sure you take certain steps to protect your rights.

There are a variety of things to consider the day those suit papers show up on your desk. There are actions that you may take innocently that could create significant problems later in the process. For example, making a note in the chart after you are sued or not sending the proper information to your attorney in a timely manner can have negative implications for you, your insurance coverage and the defense of the claim.

Your medical malpractice insurance carrier will provide an attorney to you after you have been sued, however, prior to this happening there are steps that you need to take to ensure you are protected.

Below are 10 critical items that a physician should consider when served with a lawsuit:

• Notify your insurance carrier

  Call your carrier or broker and give them a detailed assessment as to what you know. Do not delay in doing this as failing to provide timely notice to your insurance company can form the basis for a coverage problem down the road. Additionally, legal documents have time restrictions on them and failing to respond can be the basis for a procedural dismissal. Best rule of thumb is the day you get notice of a suit you give notice to your carrier.

• Secure the medical chart

  Once a suit or claim has commenced do not mix the medical chart in with all the other charts in the office. Make sure all un-filed material has been placed in the record. Put the chart in a safe place so it cannot be tampered with or misplaced. The chart will be evidence and will need to be maintained in the condition it was in on the day you were sued. Also, secure anything that may be related to the case at issue including billing records, printouts from electronic medical records, letters, emails, and appointment logs. These will all be requested at some point and it is best to have them secured early.

• Copy with care

  When making copies for anyone it is important to make sure that those copies are complete. Be meticulous to ensure that every document was copied correctly. One of the worst things that can happen is a discrepancy between the original chart and what had been provided in copies to your attorney or even worse, the patient’s attorney. There is nothing more embarrassing, and potentially damaging, to have a plaintiff’s attorney find a difference in the chart at your deposition And as always, never provide copies to anyone other than those with proper authorizations.

• What you send to your carrier

  After you have called the carrier or broker to tell them about the suit, send the suit papers and the meticulously copied chart with all the additional notes and records relating to the patient. Make a copy of everything you send to the carrier and take note of the date it was sent.

• Keep the chart clean

  Never write anything else in the chart. It is very easy to review a chart months or years later and remember something that happened but was not recorded. Fight the temptation to augment the chart. I have seen a physician innocently fill in the chart with missing information after the suit started. To a jury any alteration to the chart is looked at as inappropriate. In one case when this occurred the plaintiff’s attorney was able to get a judge to advise the jury that they can draw a negative inference by the fact the chart was altered. Discuss any missing issues with your attorney, but under no circumstances write anything else in the chart.

• Review the records

  It could have been a long time since you saw the patient so it is good to refresh your recollection about what happened. In some jurisdictions it can take months or years before you will need to testify and reading the chart may remind you of events or conversations that may be relevant.

• Don’t discuss the case

  Once a suit or a claim is filed have no discussions of case with anyone but your lawyer or your insurance carrier representative. It is also critical that you do not discuss the case with the patient, patient’s family or friends of the patient. Anything said, even innocently, can be used against you at a later time and, depending what was said, might be used as an admission of liability.

• Go over your policy

  Review your insurance policy terms and conditions (policy limits, reporting requirements, cooperation clauses, consent provisions, exclusions) and talk to your broker if you have any questions on how coverage works.

• Get the best defense

  Interview the defense attorney that will be provided to you by your carrier (at their expense) and if you are not comfortable with the level or type of expertise request a different attorney. Make sure the lawyer has both medical malpractice and trial experience. It is good to confirm that a partner in the firm, rather than a less experienced associate, will handle the important aspects of the case, such as your deposition and the actual trial.

• Take a breath

  Unfortunately in most jurisdictions lawsuits take a while to develop and it could be years prior to any movement in the case. This is especially the case with complex medical issues and multiple parties. The process may take some time so try and relax and stay informed through the process.

This is only the beginning. There is much that will take place during the course of the litigation. Speak with your lawyer or your claims representative and ask as many questions about the process as you need answered. The more actively you participate in the process, the better informed you will be, the easier the process will feel and you will be helping to provide the best defense possible.

In later installments I will provide information on how to prepare for your deposition and things to be aware of for trial.

About the Author

Marc Lanzkowsky began his career as a Medical Malpractice Defense Attorney in New York, where he represented physicians and hospitals against claims or negligence.

Marc received a bachelor’s degree from New York University in 1988 and a Juris Doctorate from Pace University School of Law in 1991 and comes from a family of 9 physicians making the subject of Medical Malpractice near and dear to his heart.

Click here to read Marc's full bio