Coping with Litigation: Tips for Medical and Dental Professionals

Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

Few things in a healthcare professional’s life generate more stress and disruption than an allegation of medical or dental malpractice.

The litigation process and the uncertainty it creates may cause a practitioner to experience stress-related symptoms—including anger, anxiety, depression, or physical illness. The first step in alleviating the uncertainty is to understand the litigation process and the defendant’s role during each step.

If you are ever the subject of a claim, our defense of your livelihood and reputation will be fierce and uncompromising, and we will be with you throughout the process.

Legal Procedures

Once you notify us of a claim, our claim specialist will contact you to discuss the case by the end of the business day following the claim assignment. Every claim allegation is serious, and we take our commitment to defend you very seriously, right from the beginning. Notifying The Doctors Company of a claim and discussing the case with your claim specialist are crucial first steps.

At this initial stage, it is often too early to determine the complexity of a case. Our experience shows that effective claims handling—like good diagnostic work—requires a thorough workup. Your cooperation is essential to a successful defense.

Throughout the entire legal process, it is critically important that you discuss the case only with your claim specialist or your defense attorney. Although this instruction may seem unreasonably restrictive, there are good reasons to control the information. If you discuss your case with anyone other than your claim specialist or defense attorney, you may inadvertently involve that person as a witness and jeopardize your defense.

Request for Copies of Your Records

The earliest indication of a lawsuit may be a request for medical or dental records from a plaintiff’s attorney or the patient. Although patients have a legal right to see their records, releasing a copy of them requires a signed authorization. The Doctors Company does not recommend that you refuse requests for records except in special circumstances, such as releasing medical records to a patient that pertain to the patient’s mental illness. We recommend that you contact your patient safety risk manager immediately whenever you receive a records request—whether the request is from a patient, an attorney, or another third party—so the validity of the request can be reviewed promptly.

A request for medical or dental records is not necessarily an indication of an imminent malpractice action. It may simply be part of an attorney’s investigation of an accident or workers’ compensation claim. Such requests can be made in a letter with a signed authorization enclosed or by subpoena or other court order. Notify our Claims Department immediately if you suspect that a request is related to a potential medical or dental malpractice action as it may be necessary for you to complete and submit a First Report of Claim or Incident form.

Notice of a Claim

A plaintiff’s decision to pursue a claim may generate a notice of intent to sue. The notice may simply be a letter from the plaintiff’s attorney. It may be triggered by statutory requirements, such as California’s 90-day notice of intent to sue. A notice from a screening panel may also be the first indication you receive. Contact us immediately if you receive any notice of a possible claim or lawsuit.

The Doctors Company’s policy requires that all notifications of potential or actual claims be communicated to us in writing. Go to our Reporting a Claim or Incident page for additional details about the notification process, instructions for submitting a First Report of Claim or Incident form, and information about contacting our Claim Administrative Support Team. 

Summons and Complaint

If you receive a summons and complaint (a lawsuit), inform The Doctors Company immediately. This type of legal document requires a formal response within a prescribed time limit, regardless of your belief in the merit of the case. Failure to respond appropriately may jeopardize your defense or even possibly result in a default judgment against you.

After you notify us, we will assign a highly qualified defense attorney specializing in malpractice defense to your case. Your attorney will contact you promptly to discuss the allegations and to provide information about the next steps. Your attorney will be responsible for filing a response to the summons and complaint and will be available throughout the litigation process to answer your questions and provide legal support. It is probable that your defense counsel will ask you to share your clinical expertise periodically throughout the litigation to further counsel’s own understanding of the case.

Discovery

From the outset of the claim, counsel for both parties engage in extensive discovery to understand the nature and extent of the care provided, as well as the merits of the patient’s allegations. During discovery, plaintiff and defense attorneys review all medical or dental records and other relevant documents related to the case to fully evaluate the claim. Interrogatories and depositions are two important parts of the discovery process.

Interrogatories

Interrogatories, which are written questions directed to a party by opposing counsel, are designed to further develop the facts or the legal and clinical foundation of a case. Interrogatories directed to healthcare professionals usually seek background information concerning the individual’s education, training, professional experience, and credentials.

Your interrogatory responses are legally admissible in court, so it is imperative that you review them carefully with your defense attorney, who will assist you in preparing accurate and appropriate responses. Take every question seriously. Above all, refrain from making angry or flippant responses to any questions asked in discovery.

Depositions

After record reviews and the service of interrogatories and responses, you will probably be required to give an oral testimony via deposition as part of the discovery process. Whatever you say to another person and whatever that person says to you concerning an incident that becomes the subject of a lawsuit can later become the target of inquiry during your deposition. You may also be questioned about any medical or dental literature research you performed in advance of your deposition or in preparation for testifying. Only your confidential discussions and written communications with your attorney or claim specialist may prove to be privileged and not subject to later discovery by opposing counsel.

Deposition Procedure

Although a deposition usually takes place in the informal setting of an attorney’s conference room or in your own office, it is a significant event. Testimony obtained in a deposition during the discovery phase frequently proves to be the single most important event of the pretrial process. It is almost always crucial to the outcome of a case.

The question-and-answer format of a deposition consists of testimony taken from a witness or party under oath that is transcribed by a court reporter. Frequently, the testimony is also recorded by a videographer. All parties to a lawsuit receive formal, written notice of each deposition so that you and your attorney can attend if you choose.

As the defendant, your deposition not only serves as an investigative tool for the plaintiff’s attorney, but it also provides a vital opportunity for your defense attorney to evaluate you in advance of the trial. This assessment has a major influence on both attorneys’ perceptions of your prospects for prevailing at trial and on the evaluation of the case for settlement. You can help your case by being well prepared about the facts of the patient’s care, conveying an air of knowledge and humility, and responding to questions in a direct and confident manner. Because video records are often made of depositions, your demeanor is an important consideration throughout the session.

Your attorney may decide to obtain the patient’s deposition testimony in advance of yours and to have you review that testimony in preparation for your deposition. Your defense attorney may also suggest that you review certain medical or dental records obtained through the discovery process so you can better acquaint yourself with the care the patient received from other healthcare professionals.

Deposition Testimony

In advance of your deposition, your attorney will schedule a conference to review questions the plaintiff’s attorney is likely to ask. Your attorney will also advise you of the best approach to use in answering the questions. At the predeposition conference, your attorney will inform you about examination techniques to expect and the approaches available to you in formulating appropriate responses. Your responses should be brief, concise, and delivered in a calm and thoughtful manner. Avoid guessing when you are uncertain of the answer. It is preferable to respond, “I do not know” or “I do not recall.” Above all, your testimony must be truthful. It is not, however, your obligation to volunteer information during the deposition or to educate opposing counsel, and you are discouraged from doing so. Doing so may unnecessarily prolong the deposition process.

Do not misstate or embellish facts in an effort to enhance your position. Be aware that, unless the plaintiff or defense attorney notes that statements are to be off the record, all comments made during the deposition will appear in the transcript. During your deposition, the plaintiff’s attorney will try to elicit answers that are most advantageous to the plaintiff’s position. Respond only to the question asked, not to the manner in which it is asked. Your function, with your attorney’s guidance, is to provide truthful and accurate answers phrased in a way that least benefits the plaintiff’s position and most enhances your own.

During your deposition, your attorney may perceive that a question is ambiguous or subject to a legal objection. Allow your attorney to state his or her objection, and consider the objection when formulating your answer. The objection may alert you to an ambiguity or hidden meaning that is not otherwise apparent. Such objections frequently serve to avert answers that could be given by the witness without a full understanding of the question. Your attorney can instruct you to refrain from answering a question he or she believes is an effort to elicit information that is not legally discoverable. Follow your attorney’s instruction in this regard.

Deposition Review

You will be asked to review your deposition transcript and provide your attorney with changes or corrections you feel are necessary to ensure accuracy. It is important to avoid inadvertent mistakes in your testimony, and no corrections should be made without first obtaining your attorney’s approval. Your deposition can be an important learning experience for you and a dress rehearsal for the potential trial.

Ongoing communication with your defense attorney is essential while the lawsuit is pending. Your attorney will keep you updated on information that is learned about the allegations made against you. Always contact your appointed counsel if you have questions or would like a status update.

With You Every Step of the Way

If a claim is ever made against you, our claims experts will be with you every step of the way. We’re here to help 24/7. Call our 24-hour hotline at (800) 421-2368 to speak with a claim specialist or a patient safety risk manager.


The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

J12908 06/21

Tags: