You’ve Been Served: Lawsuit Survival Tips for Physicians
A physician incurs nearly $200,000 in medical student loan debt, graduates in the top 10 percent of her class, and dedicates the past 14 years to providing care to patients. One day, out of the blue, the local sheriff’s office serves her with a lawsuit. Perhaps it is regarding a familiar patient, or maybe a patient the doctor cannot recall. Either way, her mind immediately leaps to: “What did I do wrong?” After the initial shock, the physician is flooded with emotions—fear, anger, betrayal, frustration, anxiety, humiliation, embarrassment. Even shame.
Chances are good that as a physician, you will find yourself in a similar situation. On average, each physician spends 50.7 months, or approximately 11 percent of an average 40-year career, on resolving medical malpractice cases—the vast majority ending up with no indemnity payment. That’s the conclusion of a study by the RAND Corporation based on data provided by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.1 These findings suggest it is not a matter of if you’ll be sued, but when―undermining the medical-school, white-coat myth that if you do well in school and rely on your education, skill, and training, you needn’t worry about malpractice.
By the age of 65, more than 75 percent of physicians in low-risk specialties and 99 percent of physicians in high-risk specialties have experienced a claim.2 Although it’s a reality that the majority of physicians will face a malpractice claim, few are prepared when served with a lawsuit. I routinely survey up to 50 physicians at seminars devoted to litigation preparation―only two or three say they received relevant information about medical malpractice in medical school.
I make it a point to advise doctors to take these steps if a claim is filed against them:
- Contact your medical malpractice carrier. Typically, a lawsuit will name multiple defendants to include various treating physicians as well as medical facilities where alleged negligent care was rendered. The pool of defense attorneys who specialize in medical 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 the right defense attorney is retained on your behalf. The defense team is referred to as a “three-legged stool,” including the physician, claim specialist, and defense attorney. All three need to work in unison to obtain the most favorable result.
- Build your defense. The attorney representing your patient has likely already developed a good portion of their case before you were ever aware of its existence. Therefore, it is critical you be an active member of your defense team to begin building your defense.
- 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. There will be flurries of activity, followed by long periods of perceived inactivity. Trust that your defense team is continuing to work on your behalf. Depositions are often scheduled, cancelled, and re-scheduled. Trial dates are routinely continued beyond the control of defense counsel. Knowing in advance these inefficiencies and inconveniences occur may alleviate frustration in the process.
- Understand the plaintiff’s strategy. Don’t believe that once you “educate” the plaintiff or, more importantly, the plaintiff attorney on the medical 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 medical records to fit their narrative. By understating the plaintiff’s strategy, you can assist in preparing an effective defense.
- Become fully engaged in the process. The key to ensuring a successful defense is preparation. Those physicians who managed to survive litigation, did so by becoming fully engaged in the process—approaching their case as an academic exercise as if they were sitting for a board exam.
- Get professional coaching on how to be an effective defendant. Physicians routinely describe the litigation process as akin to a rollercoaster ride. Every physician will have some emotional reaction to becoming a defendant in a malpractice lawsuit. It’s important to identify and become aware of your emotions in order to develop appropriate coping mechanisms. Physicians who develop effective coping mechanisms have a greater chance of successfully navigating the rigors of litigation.
- Work on alleviating stress. Remember you are not alone. Focus on the multitudes of patients you help daily. While you can’t 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 be thoroughly prepared, you must know the medical record. You must also practice for your deposition, know your deposition testimony, and read depositions of other defendant physicians and experts―all while caring for your patients and yourself. This is no small task, but successfully defending your professional reputation is worth it.
- Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Affairs. 2013;32(1):1-9.
- Jena AB, Seabury SA, Lakdawalla DN, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011; 365:629-636. doi: 10.1056/NEJMsa1012370.
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.