One in three physicians have been sued for malpractice, according to a benchmark study by the American Medical Association.
In an effort to protect their practice, physicians can make mistakes that can undermine their case, experts told MedCentral in a Feb. 21 article.
Here are seven mistakes that physicians often make when getting sued, according to the report:
1. Failing to notify the insurer. Malpractice cases typically begin when the process server serves papers to the practice, and it's important for physicians to immediately notify their malpractice insurer when a summons or complaint has been served.
"Once served, you have a prescribed length of time to respond to the lawsuit. If you don’t respond to the lawsuit within that time, the plaintiff can take a default judgement against you, which will prevent you from defending yourself on the negligence," Robert White, president of TDC Group, which includes The Doctors Company, a physician-owned malpractice insurer, said in the article. “In other words, liability has been found against you and all you can defend yourself against is the damages that the plaintiffs seek."
2. Ignoring lawyers' case notes. Important information is contained in case notes, and failing to review them before appearing at deposition can make a physician appear disinterested, which is unhelpful for their case.
Brian Whiteclaw, a medical malpractice litigator with law firm Foley, Baron, Metzger & Juip described the case of a neurosurgeon who did not review case notes prior to appearing at his deposition.
"The opposing attorney jumped on that and asked, 'What have you reviewed? Did you find out where your patient went after she had complications from your surgery? Don’t you want to know what happened to her? Wasn’t that of the least interest to you to know what happened to her?'" he said.
3. Speaking directly to the patient or plaintiff's legal team. Mr. White said that physicians don't always realize that anything said in a conversation between them and a patient who is suing them can be used against them as discoverable material.
“And trust me, no matter what you say, no matter how innocuous your words are, it won’t be portrayed that way in the other person’s version of events,” he said. “The best thing to do is let the insurer or the lawyer we have assigned to you, do your talking for you.”
4. Not completing a background check on their attorney. While settling a case can sometimes be the right decision, physicians should have the opportunity to make that choice for themselves. Without doing proper research, physicians may not realize that they are working with an attorney who prefers to settle cases, possibly forfeiting bargaining power or a position to negotiate.
Many physicians also hire a consultant attorney separate from the one assigned to them by their malpractice insurer, who can help evaluate experts and elements of the case.
5. Not giving sufficient time to their attorney. Preparing for depositions and collecting supporting evidence can take awhile, and physicians should dedicate ample time to preparing their case with their attorney.
"Be an active participant," said Mr. White. "Support your care and treatment decisions with articles on the condition and treatment alternatives. Supply the names of experts who can support the care you render," he said. "The standard of care is not so finite that it lands on the head of a pin; there are many different schools on how to treat that diagnosis. You want to find that school of thought that you chose to follow in treating this patient. To do this right, it's going to take time," he added.
6. Talking to friends or colleagues about the case. Mr. White said that while discussing one's feelings about the case is allowed, physicians need to be cautious to not violate HIPAA or other patient privacy laws by discussing factual elements of the case.
7. Ignoring the emotional impact of being sued. A 2022 study published by the Journal of Patient Safety showed that 56% of physicians being sued suffered psychological stress that resulted in changes in their medical practice. Another study published by the Journal of Healthcare Quality Research showed that 80% of physicians being sued experienced significant mental distress, no matter the claim's outcome.
Mr. Whiteclaw said that physicians should be open with their legal team about any emotional distress or depression they experience during the lawsuit. "One physician was going through a difficult divorce and taking care of sick children during her lawsuit," he said. "She was stressed; it was a terrible time for her. Had she told me that was going on for her, we could have helped."