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When the lawyers come for you

Tips to help you weather being sued

February 2018
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WHILE DOCTORS now get sued less frequently than they once did, the combination of bad outcomes and unhappy patients and/or families still produces a steady stream of lawsuits. Hospitalists, who rarely have time to form a solid relationship with patients, can be especially vulnerable.

Every lawsuit begins with a plaintiff telling an attorney what he or she thinks went wrong. The attorney then requests records to try to get the facts of the case. Because you have no office practice, the request goes to the hospital and those records are sent to a medical expert in your field. If that expert doesn’t support the claim, you may never even know a request was made.

Insomnia, depression, mood disorders, temper tantrums, burnout—all are reactions that can result from a lawsuit.

If, however, the expert thinks the case is worth pursuing, you (and almost certainly the hospital and any other doctors involved) will receive a claim letter and probably a subpoena of some kind. At this point, you should call your malpractice insurer, who will provide you a defense attorney.

Doing your homework

You may not even remember the particular patient until you review the records. That’s when feeling puzzled will change to “But I didn’t … !” or “I thought I explained all that and we were getting along.”

The plaintiff’s claim letter will be long and detailed, with many minor items like failing to order a low-fat diet; these are thrown in to make you look sloppy. Concentrate on the major issues like delaying a surgical consult or not performing a full neurological evaluation on a stroke patient.

Make a list of these with your attorney, then point to parts of the record that support your side. (Don’t forget nursing notes, which often make or break a case.) In most states, this will be turned into a defensive document, and the attorneys will try to negotiate a settlement.

If you had only a minor role in the patient’s care— you admitted her while on night call and the problems didn’t start until three days later—you can ask to be dropped from the suit. Because plaintiffs’ attorneys are interested only in strong suits, they will probably agree.

As for variation among states, these can be substantial. Some states are frankly anti-plaintiff and will not allow a case to go to trial without the approval of a panel of doctors in the relevant specialty. In others, a series of depositions by plaintiffs, defendants and experts may lead to a settlement.

Both sides usually prefer to avoid a jury trial because of the expense. Read your documents carefully to be sure all the major accusations have been addressed in a way that favors your side of things.

The deposition: Keep a cool head
In a deposition, the opposing attorney asks you questions about your background and experience, then reviews the events in question. Spend as much time as you need with the defense attorney clarifying what the problem was and why you treated it as you did. Many defense attorneys will provide suggested answers to questions they expect you to be asked.

At the beginning of the session, everybody shakes hands and chats about sports or the weather, and you may think the plaintiff attorney is not such a bad guy. Wrong! He is the opposition, and it is his job to attack your professional behavior and competence.

After being sworn in, you will be asked easy questions about your education and experience. Answer questions about why you chose a particular residency or took a hospitalist job in terms of professional aspirations: You liked the med school’s holistic approach to patient care, or hospitalists get to see problems that never make it into a primary care office. Avoid sounding as if you just drifted along or picked a location just to avoid snow.

When you get into clinical issues, a common trick is to request that you answer questions with a simple “yes” or “no.” Promise to do so only if it is the complete answer. After all, you promised when sworn in to tell the whole truth, not a one-syllable version.

Common tricks
An even sneakier trick is for the opposing attorney to remain silent after you explain a situation or choice, hoping you will go on to talk yourself into trouble. Don’t fall for this. If your answer is complete, you are done, and the attorney will just have to enjoy the silence.

Occasionally, attorneys try hostility or condescension to attempt to generate an emotional response from you. They’re wasting their time, right? You have dealt with manipulative people your entire career. Keep your dignity just as you do with difficult patients and go on answering questions factually and logically. (Personal observation: These people really hate it when you stay calm.)

Dress in a dark jacket with earth tones in your tie or blouse and no distracting patterns. And speak as you would to a patient: “a kidney infection causing dangerously low blood pressure,” not “pyelonephritis with secondary hypotension.” This makes it clear that you can communicate with a jury if you need to.

And remember: You can ask for a break any time you feel uncomfortable—or if your attorney frowns at something, or the questions were not the ones you anticipated. It’s actually good to take a few minutes mid-deposition to get reassurance and advice, so don’t worry that it makes you look weak.

As for shared liability: Even if you’re not directly employed by the hospital, the facility will usually be named as a codefendant. If your attorney starts talking about settling, ask how those papers will be worded, because they will be part of your National Practitioner Data Bank record available to future employers. Try to have the hospital named first so your and your fellow physicians’ roles will appear less significant.

The emotional toll
Insomnia, depression, mood disorders, temper tantrums, burnout—all are reactions that can result from a lawsuit. Talk to a senior doctor, preferably one who remembers how bad lawsuits were before tort reform, and to your group leader about how this is affecting you. Some time with a chaplain or psychologist may help you with coping strategies; a quiet, four-day weekend may let you reflect on your feelings and realize which are helpful and which make you less effective as a physician.

Lawsuits take months to play out, which is hard to handle when you’re used to ordering antibiotics and having a fever disappear in 48 hours. Learn as much as you can from your defense attorney, and put the legal stuff on hold while you continue your usual excellent care. You’ll be a bit more cautious in the future, but you may become a better doctor as a result.

Stella-FitzgibbonsStella Fitzgibbons, MD, has been a hospitalist since 2002 and has worked as an expert witness since 2008. She has testified in more than 20 lawsuits.

Published in the February 2018 issue of Today’s Hospitalist
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March 2018 6:55 pm

Thank you for sharing this.

Aparna Mohan
Aparna Mohan
February 2018 11:42 pm

Thank you for this very informative article.