The Do’s and Don’ts of Defending a Medical Malpractice Lawsuit

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“You’ve been served.” These are three words that every physician dreads hearing. But although a medical malpractice lawsuit is something no physician hopes for, it’s best to know the facts and be prepared in the case that it does happen to you. Below are the major Do’s and Don’ts to remember for navigating the beginning of a medical malpractice lawsuit.

Do: Before being sued, you can help yourself by keeping all patient information up to date and complete. Include all labs, diagnostic testing, consultations, and other outpatient services in the patient’s chart. Also include any correspondence, orders, and referrals. Make sure to record a detailed assessment and plan soon after each visit. Date and sign the patient record once completed. List all diagnoses and pertinent differential diagnoses relating to the care given for that date of service. Include any additional diagnosis impacting the patient’s care. Make sure to document as much information as possible regarding discussions with the patient and his or her family members about your treatment plan, including the time spent counseling the patient or family members when possible. Finally, be sure to thoroughly review any information entered by other staff involved in the patient’s care.

Don’t: Do not sign the record without reviewing all the information entered or authorize someone to sign in your place. Do not attempt to modify or change the information after the record is signed and dated. If you need to make a change, create an addendum to the note, which includes the information you are adding or changing and the reason why. Do not allow for a significant period of time to pass before completing the patient’s record.

Do: Once you receive notice of a lawsuit, contact your insurance carrier right away.  Your claims representative will assign a defense attorney to your case.  You can request a specific attorney.  However, insurance companies often have a list of attorneys with whom they typically work.  The initiation of a lawsuit sets into motion a specific timeline for you to respond, so contacting your insurance carrier quickly is important.

Don’t: Although it may be tempting, don’t access the patient’s electronic medical records.  Often, plaintiffs’ attorneys request an audit trail of the patient’s electronic medical records.  This audit trail contains information, including dates, times, and the identity of individuals who access the patient’s medical records.  In order to avoid accusations of altering the medical records, do not access the patient’s electronic medical records after you’ve been sued.  Your attorney will provide you with a set of the patient’s medical records for your review.

Do: Have patience with the process.  The average medical malpractice lawsuit lasts approximately two to three years.  Often, a flurry of activity occurs at the initiation of the lawsuit.  Your attorney will want to meet with you and will contact you about drafting your initial response.  Then, you will respond to written discovery questions and prepare for your deposition with the help of your attorney.  Sometimes, there can be long periods of inactivity.  This inactivity is very common and can be due to a number of reasons, including waiting for a decision from the court or delay from the plaintiff’s attorney.  You can always contact your attorney with questions about the defense strategy or status of your case.

Don’t: Don’t consider this lawsuit an indictment of your entire medical career.  Unfortunately, a medical malpractice lawsuit is often inevitable over the course of a physician’s career.  A medical malpractice action alleges professional negligence.  In other words, the plaintiff is not claiming that you intentionally harmed the patient.  Instead, the plaintiff alleges that a mistake was made.  Medicine is just as much of an art as it is a science.  Doctors are forced to make life and death decisions in a matter of seconds.  Attorneys, on the other hand, have years to analyze these decisions and claim reasons as to why a procedure should have been performed differently or a different test should have been ordered.  It is completely understandable to be upset by a medical malpractice lawsuit.  However, don’t let it shake your confidence or make you question your abilities as a physician.

This article should not be construed as legal advice.  The author, Julia Kurtz, Esquire, currently practices at Matis Baum O’Connor in Pittsburgh, Pennsylvania.  She practices civil litigation with a concentration on medical malpractice defense, federal civil rights defense, and healthcare law.  She is licensed in Pennsylvania and West Virginia. 

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