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I have heard some disturbing medical malpractice advice recently. Some people are advising that physicians speak openly about their lawsuit to anyone who will listen. I have heard that physicians should “come out of the closet” so to speak, and talk about their experiences, both for their own healing, and to help others in the same predicament.

Getting sued may just be the most traumatic event in your working life, and too few doctors have developed adequate coping mechanisms. Many physicians go years before even admitting that they’ve been sued at all. There is anger, frustration and shame that we feel for being put in this uncomfortable position. Having an outlet for your fears and concerns is a very healthy way to adjust to life after getting sued. That said,  if your case is still active, you need to be careful about who you talk to.

#1 You can talk to your attorney and your spouse about the specifics of the case. Anyone else can be called or deposed as a witness.

I know what you are thinking: if I talk to my brother Joe, nobody will be the wiser. Probably true. That is, unless you are asked in a deposition who you’ve spoken to, which is not likely. And if you have a close friend who is a physician, it is also not likely that the plaintiff’s attorney will know about them to depose them. The box above just details who is completely safe to talk to, even though others are in all likelihood safe as well. That being said, there are those you specifically should NOT talk to:

#2 Do not speak to your colleagues about the specifics of this case unless it is in a peer-review setting. Do not speak to any hospital staff about this case. Do not speak about this case in public areas where staff can overhear details of your conversation.

Anything you say to them outside of peer review is not protected and can certainly be used against you. You might think about talking to that surgeon who found the appendicitis you missed. Don’t. No matter what they say to you that seems supportive of your care, you never really know if they will be helpful to you. And a comment you make could be repeated in a deposition in a way that shines unfavorably upon you.

If you talk about this case to one of your colleagues and someone overhears you, they will in all likelihood begin chatting with others about your case as well. Not necessarily in a negative way, but they will talk. Remember, hospital staff often gets sued and deposed in medical malpractice cases. Your discussions can taint their testimony if it is supportive of you and ruin what might have been a great witness.

#3 It should go without saying, do not discuss this case with any other parties in the case: codefendants, nurses, techs, secretaries and anyone else who was working with you on this patient/plaintiff, outside the presence of your attorney.

Now this does not mean that you should hide in the shadows and never talk about your case. You certainly can talk to people about your emotions – anger, frustration, depression. Just not the details of the case. And you can always consult a psychiatrist if you need a safe, objective person to vent to.

Once your case is over (meaning all possible appeals processes have been exhausted, not simply when the trial has ended), you can be more open about the details of the case. However, as in my other article, “Anything you tweet can be used against you…” you need to be cognizant that anything you write in the public arena could be read by a plaintiff’s attorney when you are sued in the future. If you must vent online, try to be as professional as possible. Again, imagine anything you write as being read aloud to a jury.

An exception to the above is a rare circumstance when, as part of the terms of a settlement, a non-disclosure agreement is signed. This is usually insisted upon by the Defendant’s attorney to protect the physician’s reputation. However, the Plaintiff’s attorney might insist that the physician not publicize any aspect of the case. If this happens, you cannot write about it on any blog, or social networking site or else you could be liable for damages.

Yes, it is important that doctors support one another through this difficult process, however, do not do so at the expense of your current case, and any that may occur against you in the future.

Ilene Brenner, MD, is the author of the forthcoming book How to Survive a Medical Malpractice Lawsuit (Wiley-Blackwell: $34.95) 
 

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