Almost no physician goes into practice thinking about how they will deal with a malpractice suit. It’s not covered in training, and your mind is on the actions and responsibilities of your practice. But some level of forethought is advisable: How you deal with a lawsuit early on can have an influence on its resolution.
Although claims against physicians can arise at any point in their career, the risk for being sued climbs with age and practice volume. It varies by specialty, and general surgeons are particularly vulnerable. According to the American Medical Association, 63% of general surgeons face a malpractice suit at least once, and 50% are sued twice or more.
“Unfortunately, it’s just part of medicine. If you do enough surgery, you will almost inevitably get sued,” said Frank J. Borao, MD, who specializes in foregut and bariatric surgery and has been the director of minimally invasive surgery at Monmouth Medical Center, in New Jersey, for 20 years.
The reasons for litigation are not always tied to poor outcomes. “It could be a matter of poor communication with a patient, a misunderstanding of something you discussed or an unrealistic expectation of the surgical outcome. You’re not always sure why someone sues you, but you do want to figure out why this event occurred so you can avoid it in the future,” Dr. Borao said.
The Nuts and Bolts of a Malpractice Suit
The first thing to do when you learn you are facing a lawsuit, either through an attorney’s request for medical records or by being served a complaint, is to notify your employer—if you have one—and call your malpractice insurer to put them on notice.
“Do this as soon as you can, because sometimes there is an opportunity to settle the case before it’s even filed,” said Svetlana Ros, a partner and the chair of the Health Care Practice Group with Pashman Stein Walder Hayden, a law firm headquartered in Hackensack, N.J.
Upon learning of the claim filed against you, your insurer will appoint an attorney who will contact you, review records, begin to consult experts and try to determine the strengths and weaknesses of the case.
“Generally, the answer—the response from the defense—is due within 35 days of being served,” Ms. Ros said. Thus, it is important to put your malpractice carrier on notice quickly, so that counsel can be assigned, and ensure timely filings of appropriate response to the complaint.
Then the discovery period begins, with the two sides exchanging interrogatories (i.e., written questions and answers), document requests, expert reports and depositions.
“The plaintiff has an opportunity to research the defendant; the defendant has an opportunity to build their case against the plaintiff. Simply put, it’s the period when both sides can dig deeper to decide the strength of each other’s case. It’s usually an extensive period of time, during which a lot of cases settle,” Ms. Ros said.
The deposition is a formal, sit-down, question-and-answer meeting in which the defense, plaintiff, experts and witnesses give sworn testimony. Although depositions do not involve a judge, they are given under oath and include a court reporter who transcribes the meeting; this material is admissible in court.
During the discovery period, both sides identify their expert witnesses. “With regard to the medical care rendered, this will be someone in your specialty or subspecialty who will be able to give their opinion on the standard of care and whether or not you followed it,” Ms. Ros said.
“The search for experts will start pretty early on, because a lot of what happens is contingent on the plaintiff finding a credible expert. If they don’t have a strong expert, the plaintiff might be willing to accept less money to settle, and your lawyer will likely seek an order from the judge to dismiss the case. “Once the discovery is over, technically you would go to trial, but very few cases do.”
Taking Care of Yourself and Your Case: Dos and Don’ts
Figure out what happened. Dr. Borao advises surgeons facing a lawsuit, which he did himself about five years into practice, to find out what went wrong. This can take a bit of digging if you followed the standard of care and it isn’t obvious.
“Review the records, look at the hospital course, the documented discussions you had with the patient,” he said, noting that it’s good policy to record every exchange you have with a patient, discussions of various treatment options (including no treatment) and the possible outcomes of each.
“Because after the fact, when it’s time to go to trial, it can’t be ‘he said/she said’; in the world of law, if it’s not documented, it didn’t happen.”
It goes without saying: Never alter a record. “Always stick with the facts, with what’s documented,” Dr. Borao said.
Know your malpractice coverage. The type of malpractice insurance you have is usually based on the type of practice you have. “If you work for a private practice, you usually have a consent policy, which means you have to give consent in order for the case to settle. If you work for a large hospital or a hospital that’s self-insured, you may have a non-consent policy, meaning that the hospital and the carrier don’t need your permission to settle if they think it’s in their best interest to do so,” Ms. Ros said.
Stay engaged with the case. Lawsuits can drag on for years, and you may feel you don’t have the time, or desire, to stay on top of the details of your case. But it’s in your best interest to keep informed with regular updates.
“Ask your malpractice attorney to provide you status reports, which they are consistently providing to the malpractice carrier. Especially if you have a non-consent policy, it’s vital to be engaged from the beginning because you probably have less of a driver’s seat than you would have with a consent policy,” Ms. Ros said.
Prepare thoroughly for deposition. Everything that comes up in a deposition is recorded, so accuracy is crucial. “If you’re not prepared and you say something that’s potentially harmful to you, it’s there, under oath, transcribed. If your case gets investigated by the board of medical examiners, that could hinder you before the licensing agency,” Ms. Ros said.
“My biggest piece of advice for doctors is to meet with your malpractice attorney and spend a few hours going over practice questions. You also want to go over the medical record and not rely on memory; review the record as if you were professionally critiquing someone else’s record,” Ms. Ros said.
Also, be aware that the deposition is not an opportunity for resolution, no matter how strong your case. “You’re not there to prove anything. You’re there to answer the questions as precisely as possible and just give those facts, nothing else. You’re not at trial,” Dr. Borao said.
Be nice. Everything in a case is being assessed, and that includes you.
“A lot of times, physicians take a very abrupt position that they have done nothing wrong, and they can be very confrontational. That’s probably not the best way to go,” Ms. Ros said.
“You could be the best surgeon, providing the best care, but if you come off as an unpleasant individual, nobody’s going to hear what you have to say. Likability is huge in a case.”
Try to keep things in perspective. “Initially you’re upset. A lot of surgeons feel they failed the patient, or they may take it personally. And then you get angry. You work hard, do the best you can, and now you have to deal with this litigation, which is very time-consuming and could take years,” Dr. Borao said.
“But you can’t let it consume you. If it becomes all-encompassing, you can’t focus on your work. It’s either going to get dropped, settled or go to trial, and all you can do is move forward with taking the best possible care of your current patients.”
Although defense is generally advised not to discuss their case with anyone besides their attorney, discussing what you’re going through—sans details—may be helpful, Ms. Ros said. “Talking to peers they trust, recognizing that they are not the only one. This is not going to go away quickly, so whatever doctors can do to find peace of mind, they should do.”
This article is from the September 2021 print issue.
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I have been involved in multiple cases. I have found that one of the most useful things for me was to discuss the case privately with a friend and expert. This would preferably be a professor surgery. Reviewing the case with such a person can shed new light on the standard of care in the case itself.