That dreaded day arrives. And no it is not just a bad dream. That police officer at your front door is not ringing the doorbell to warn you of a prowler in the neighborhood. He has come to serve you with papers notifying you of a complaint filed by a patient, a patient you may or may not remember seeing.
The feeling is akin to being hit on the head with a bat, stabbed in the back, and disemboweled, all at the same time. Thoughts run through your mind like, “Will I lose my job?”, “Is my money protected?” and “Am I a bad doctor?” You are justifiably depressed, confused, frustrated and angry. When you’ve had a few minutes, or hours, to assimilate this experience that unfortunately has begun a new chapter in your life, you undoubtedly ask “Now what?”.
When it happened to me, I called my father. Then again, not everyone has a medical malpractice defense attorney for a father. Most people don’t have a guide who can say what needs to be said to get you started and to avoid making mistakes that can harm your future case. So I am going to tell you what to do, and equally important, what not to do.
The first thing you should do, if possible, is find your copy of your medical malpractice policy. I know, most of us think paying out an exorbitant sum of money every year is the extent of our necessary knowledge of our policy. But there are a few things you should know about your policy, and if you don’t know you should find out…and soon.
Q. What are my policy limits per case?
This is especially important in states that don’t have caps on non-economic damages such as pain and suffering. If the patient’s economic damages are likely to be relatively low and you have caps that limit the non-economic component, then your typical one million dollar policy limit will more than suffice. You can rest easy that you won’t become destitute if you lose. Also, if this is a high economic damages case, i.e. a patient with a long stay in the ICU, loss of wages, disability and loss of future income, you will know if you are adequately covered in the event you lose. I’m told by a number of med mal attorneys that they’ve never heard of any plaintiff attorney going after the doctor personally when their limits are exceeded by a high verdict. That being said, it is still possible, and maybe now is the time you (the doctor who is reading this who has not yet been sued) should review your limits to see if you are comfortable with them. Or review your asset protection plan, though I’m not sure if that actually works. I think that any plaintiff attorney ruthless enough to go after your personal assets will find a way to get at them despite your best efforts to hide them.
Q. Do I get to choose an attorney or must I accept whoever is assigned? What are the pool of attorneys from which I can choose?
This is important if you know of a good attorney that you want to request. Also, plaintiffs often sue multiple doctors, including your employer. Sometimes your employer will “assign” you the same attorney as them. This can pose a conflict of interest if your attorney is representing both of you, often to your detriment. So if you feel that may be the case and can request a separate attorney, do so. How you choose your attorney is a topic for a much longer article, but the process involves colleague recommendations, peer reputation, and insurance company suggestions.
Q. Do I have the right to choose or deny settlement?
It may not seem like a big deal, but nowadays even a low settlement is considered a loss as it raises your risk status with the insurance company. It causes your rates to go up. It can even make it hard for you to get hired at another job. Your insurance company is not working for you, but for themselves to limit risk of a large verdict. If they think a low settlement will save them money in the long run, they will do so, sometimes irrespective of whether or not you have “a good case.” Therefore, if you don’t have the right to deny settlement, you are at their whim. If you do, you can press to go to trial whether or not the insurance company likes the idea. After all, it is not their record which will be affected by a settlement, just yours. If you don’t have this clause in your policy, you should strive to get it in there if possible. Sometimes you don’t have a choice but it doesn’t hurt to ask.
Make the Call
The next thing you should do is call your insurance company to report the claim. You can call your employer out of courtesy, but really you should deal with the insurance company directly. Some physicians’ policies were purchased on their behalf by their employer. It is still your policy. And you should not let them take over, even if they offer. Again, there can be a conflict of interest, so the only one looking out for you is you. Likely, the agent will ask you some details about the case so you should have read through the complaint to get an idea of why you are being sued. It’s okay that you don’t have your defense planned yet. They will also bring up the subject of hiring an attorney (See #2, above) You will need to hire a lawyer relatively soon to respond to the complaint, often within thirty days. But it doesn’t have to happen today. In fact, it shouldn’t. Take some time to do some research. Your attorney does to a large extent determine whether you win or lose. Don’t take this part lightly.
A Few Things to Avoid
Now, what not to do: Do not give in to the temptation to look anything up in a book, journal, or online site. You may think finding data to support your case will help bolster your confidence, as it likely is at an all time low, but it can be damaging to your case. Here’s why: when you are deposed and also at trial, the plaintiff attorney will try to pin you down to an “Authoritative Source” of information. In other words, they will ask you what you consider a source text, i.e. Tintanelli. Once you have given up that you have an authoritative source, the plaintiff attorney at trial will embarrass you on the stand with obscure out of context quotes that hurt your case. The way to prevent this is by saying this mantra over and over, “Nothing is Authoritative.” Books are out of date when printed. Journals are not gospel whether AJEM or NEJM. Reputable Journals in other fields are not always relevant. Articles in Journals are often flawed studies. Information is changing all the time.There is a time to look up information. This is after meeting with your attorney. After that, any research you do is for them, not you, and not subject to discovery (this may vary by state, but I know this to be true in Georgia and New York, so you should ask your attorney to be sure). The plaintiff attorney will try, in your deposition, to pin you down to an authoritative source. When you have stonewalled them, they will then ask you if you researched anything about the case after receiving the complaint. You will say “No. I only looked up information per the request of my attorney.” Your attorney (if any good) will then object to any attempts to find out any more information on this topic. You will then have frustrated the plaintiff and helped your case a great deal; a two for one special.
Other things not to do: Don’t blame yourself. Don’t let this case affect your current patients, don’t look at them as the enemy and don’t lose your compassion. You are the same good doctor today as you were yesterday. Don’t forget that.