Assisting in Your Defense: Strategies for Healthcare Practitioners

Douglas McCullough, JD, Assistant Vice President, Claims, The Doctors Company

According to the Medscape Malpractice Report 2021, 51 percent of responding physicians said they had been named in a lawsuit during their careers. Consider the following scenario:

Case Example

A physician incurred nearly $200,000 in medical student loan debt, graduated in the top 10 percent of her class, and dedicated 14 years to providing care to patients. Unexpectedly, the local sheriff’s office served her with a lawsuit filed by a long-time patient. Stunned, she tried to analyze what she had done wrong. After the initial shock, the physician was flooded with emotions: fear, anger, betrayal, frustration, anxiety, humiliation, embarrassment—and even shame.

Chances are good that at some point during your career, you will find yourself in a similar situation. Advanced practice clinicians and dental professionals are also targeted in malpractice claims. Although it is a reality that the majority of healthcare practitioners will face a malpractice claim, few are prepared when served with a lawsuit due to a lack of relevant information during their education and training.

The following strategies will assist in your defense if a claim is filed against you:

• Contact your professional liability carrier. The defense team—often called a “three-legged stool”—includes the practitioner, claim specialist, and defense attorney. It is essential that all three work in unison to obtain the most favorable result. In addition, a lawsuit will typically name multiple defendants to include various treating practitioners as well as the facility or facilities where the alleged negligent care was rendered. The pool of attorneys specializing in malpractice defense is a small one. Many malpractice carriers draw from the same pool of attorneys, so it is important to notify your carrier as soon as possible to ensure that the claim team retains the right defense attorney on your behalf.
• Build your defense. The attorney representing your patient has likely already developed a good portion of the case before you were ever aware of its existence. It is, therefore, critical for you to be an active member of your defense team to begin building your defense.
• Understand the plaintiff’s strategy. Do not believe that once you “educate” the plaintiff or, more importantly, the plaintiff’s attorney on the case facts, they will drop the suit. The only time you will be given the opportunity to educate and explain the care you provided is at trial. The plaintiffs’ bar is very skillful at taking testimonial “sound bites” and portions of the patient records to fit their narrative. By understanding the plaintiff’s strategy, you can assist in preparing an effective defense.
• Become fully engaged in the process. Practitioners who survive the litigation process most successfully do so by becoming fully engaged in the process—and by approaching their case as an academic exercise, almost as if they are sitting for a board exam.
• Prepare for your deposition. The key to ensuring a successful defense is preparation. To be thoroughly prepared, you must know the patient’s record. Practice for your deposition. Know your deposition testimony and read depositions of other defendant practitioners and experts. For more information, see our article, “Key Factors in a Deposition: What Healthcare Professionals Can Expect.”
• Be prepared for extended periods of perceived inactivity. The legal process is inefficient and impossible to control. The litigation process typically lasts two to five years, with claims being filed a year to two years after a negative event or the date of discovery of an injury—depending on state laws. Flurries of activity will be followed by long periods of perceived inactivity. Trust that your defense team is continuing to work on your behalf. Depositions are often scheduled, canceled, and rescheduled. Trial dates are routinely continued beyond the control of defense counsel. Knowing in advance that these inefficiencies and inconveniences occur may alleviate frustration in the process.
• Get professional coaching on how to be an effective defendant. Practitioners routinely describe the litigation process as akin to a rollercoaster ride. Every practitioner will have some emotional reaction to becoming a defendant in a malpractice lawsuit. It is important to identify and become aware of your emotions in order to develop appropriate coping mechanisms. Practitioners who develop effective coping mechanisms have a greater chance of successfully navigating the rigors of litigation.
• Work on alleviating stress. Remember that you are not alone. Focus on the multitudes of patients you help daily. While you cannot divulge details of the litigation to family and friends, talk to them about how the claim is affecting you. And continue to participate in the personal interests and activities that provide you with joy. To learn more about managing the effects of a lawsuit, read our article “Overcoming the Stress of Malpractice Litigation: Solutions to Help Physicians Stay Healthy and Engaged.” We also offer a video series, “What to Expect from Litigation.”

Additional Assistance

Preparing for and participating in a lawsuit while continuing to care for your patients and yourself is no small task, but it is necessary to successfully defend your professional reputation. For additional guidance, see our article “Coping With Litigation: Tips for Healthcare Professionals.”

To learn more about reporting a claim or incident, visit our Reporting a Claim or Incident page. For patient safety assistance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.