AAOS Bulletin - December 2006

Just been sued…What happens next?

By Alan B. Rindler, Esq.

Editor’s note: This article is the first in a two-part series. Part II will examine the actual trial process.

You’ve just wrapped up a grueling day in the operating room when you get the news: “You’re being sued.” Your first reaction? Shock and disbelief, most likely. Anger, anxiety, shame, despair and even physical symptoms may soon follow—all natural responses when a physician is facing a medical liability case for the first time.

Whatever your emotional reaction is to news of the lawsuit, your first course of action should be to contact your insurance agent or medical liability insurer directly. With this step, you’ve begun the process of retaining defense counsel to represent you in the lawsuit.

After you’ve been served a summons and complaint, you (the defendant) are given a set amount of time to respond to the complaint. Many plaintiff attorneys will grant extensions of time to file a response. However, it is imperative that the summons and complaint be immediately transferred either to the attorney who will represent you, or to your agent or insurer who will then provide it to your defense attorney.

Ideally, shortly after the complaint has been forwarded to the appropriate individual, you as the defendant can expect to receive a telephone call from the insurance claims representative who will handle your case, followed by a contact from the defense attorney assigned to represent you. If you have not heard from your insurance company within a few days of forwarding the complaint, you should contact the insurer and determine who is responsible for handling your claim. This information should be provided to you by telephone, e-mail, or letter within a week to 10 days.

Getting support
The claims representative and your defense attorney are your key resources for understanding the legal process. Initially, they are also the most important sources of support to help you handle your reaction to being served with this summons. Shock, anger, despair and confusion are common responses and need to be managed.

Shock is often the result of the physician’s belief that—despite an unfortunate outcome—he or she did everything reasonably possible, not only to treat the patient but to provide good care in the aftermath of a poor result. Most physicians go out of their way to relieve their patients’ anxieties and concerns when the postoperative course is prolonged and has not reached the intended, desirable end-stage.

After the shock often comes anger. You may ask yourself: “How is it possible that I’m being sued when I did everything in my power to achieve a satisfactory result?” This anger may lead you to develop a negative attitude toward your patients. You may begin to view the doctor-patient relationship as an adversarial one. (See the article “The doctor-patient relationship: A casualty of the medical liability crisis” by Stuart L. Weinstein, MD.)

At this point, you may ask:

  • “Is my insurance going to cover any damages?”
  • “What should I do about my assets?”
  • “Should I transfer my house into my spouse’s name?”
  • “Is my 401K account safe?”
  • “How much can the plaintiff recover?”

You may receive a form letter from your claims representative advising you that although your coverage is limited to a certain amount, there is no set limit to damages awarded in a jury trial. Hence, your insurer invites you to retain your own personal counsel in addition to defense counsel obtained through them. Receiving this letter is often a source of consternation. It is best to discuss the meaning of this statement with the claim representative and your defense counsel. Ask if and how it applies to your specific case. 

To assess whether you have any potential personal exposure, independent expert opinion must be obtained as to the treatment rendered, and full discovery of the alleged damages must be assessed. It will take months before an educated opinion can be formed as to whether liability is reasonably clear, and whether the potential damages exceed the available insurance. At that point, you may want personal counsel to determine if a demand should be made on your insurer to settle the case, within your policy limits.

Don’t mess with the records
Occasionally, a physician who is unfamiliar with the litigation process will review the medical records when the claim first is made—even if it’s nothing more than a letter from an attorney requesting records. The physician may find that a discussion, finding, symptom or part of the operative technique was not described in the record. To ensure that the entire treatment plan is understood, the physician might add something to the record. Whether it is an addition of information or far worse—an alteration of information—such activity will place the physician into an untenable position, regardless of the merits of the defense. Such an action totally undermines your credibility. Whatever the quality of care you provided, altering records after you’ve been put on notice will most likely require you to settle the case, and at a much higher figure than necessary.

Simple advice: Do not in any way change or add to your record. If you think some information is missing, disclose that to your defense attorney and let him or her advise you on how to ensure inclusion of that information in your defense.

Understand the legal process
Understanding the legal process in the jurisdiction where your case will be heard is central to providing you with the stability and the work-life balance you’ll need to deal with this lawsuit. The specifics of the legal process (e.g., how long it takes to be resolved) differ from state to state. In general, there will first be a period of “discovery”—part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to “discover” pertinent facts. Written questions called “interrogatories” and “requests for production of documents” will be served by all parties. Your attorney must respond to these inquiries as accurately as possible because they become the first statement of your position signed under oath and the penalties of perjury.

The medical tribunal
In many jurisdictions, some sort of medical tribunal will be held early on in the process, at which the plaintiff patient is required to submit an “offer of proof.” At minimum, this is established with a letter from an expert detailing why he or she believes a breach of the standard of care occurred in the treatment and how that breach was a substantial factor in causing harm to the patient. This process helps to prevent the filing of groundless medical liability suits.

Although the numbers vary from state to state, in Massachusetts about one-third of such hearings result in a finding favorable to the defendant physician, whereas two-thirds find in favor of the patient. When the finding is in favor of the physician, the plaintiff is required to post bond ($6,000 in Massachusetts) in order for the case to proceed further. However, if the patient is indigent, the amount of that bond can be reduced to almost nothing and the case can proceed.

Alternatively, a plaintiff may appeal the finding of the tribunal to the appellate court in the state where the physician practices. This process typically takes up to one year before the appellate court renders a decision on whether the tribunal’s finding will stand. If the appellate court upholds the finding, the case is over. If the court finds that the tribunal made an error, the finding for the physician is reversed, the case is sent back to the trial court and the lawsuit proceeds.

The deposition: Your starring role
In addition to the written discovery discussed above, another part of pre-trial discovery is the deposition—oral testimony taken under oath, typically in the office of the plaintiff counsel.

Giving your deposition is probably the most critical role you will play in your own defense. During the deposition, counsel is permitted to inquire into your background, your qualifications, the specific patient interaction, and the type of procedure performed in the case (most cases arise out of operative procedures). To some extent, counsel is also permitted to test your general knowledge regarding the type of injury and the type of treatment options available to you at the time you treated the patient.

Prior to the deposition, you will need to spend time with your attorney learning about the deposition process and preparing to respond to the type of questions you’re likely to be asked. It’s essential for you to understand and discuss the themes of your defense with your attorney. That way you will be able to answer in accordance with your themes of defense.

Stick to the facts
When giving a deposition or testifying in court, there is no such thing as a general question asked in a vacuum. All testimony you give should be consistent with the facts and circumstances of your treatment in the case. Be sure you understand the purpose of questioning and avoid general discussions of the specific operative procedure, the patient’s care plan or any matters unrelated to the patient’s treatment.

While the plaintiff’s attorney is obtaining information from you, your lawyer is acquiring all pertinent information from the patient. At this time, your attorney sends your case for expert review—a crucial aspect of your defense. If credible expert support can be obtained, then the case will be defended at trial.

Note: The above information is provided for educational purposes and is not intended as legal advice.  You should consult a qualified attorney if you have legal questions.

Alan B. Rindler, Esq., is a partner at Rindler • Morgan, a Boston law firm specializing in medical liability defense.

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