One of the first things EP defendants learn from their attorneys is to not discuss the claim with anyone. However, this is not realistic.
“The blanket statement that a defendant EP should discuss an active lawsuit with no one other than defense counsel requires some unpacking,” says Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO.
The reason for this common mandate is that any statement a defendant EP makes to anyone other than defense counsel regarding an active lawsuit is discoverable and can be used against the defendant at trial. “Procedurally, any such statement commonly comes to light when an honest EP answers an interrogatory or deposition question along the lines of ‘With whom have you discussed this lawsuit?’” Volpi explains.
A curious plaintiff then subpoenas for deposition anyone who is identified, looking to find out what was said about the lawsuit. “It’s important to look at this from two perspectives: the defendant EP and the non-party EP,” Volpi recommends.
The defendant EP may be working with the defense counsel for the first time. Thus, says Volpi, “there’s little relationship and trust established early on,” Also, it is likely the EP wants clinical input that an attorney simply cannot provide.
Volpi says it is unrealistic to expect a defendant EP to discuss an active lawsuit with no one — and that it would not be believable. “A defendant EP who doesn’t discuss an active lawsuit with his spouse or business partner is difficult to present as human,” Volpi argues.
A more realistic instruction might be: “Don’t tell anyone anything about an active lawsuit that you wouldn’t want the jury to hear.” A defendant EP should never admit liability, disparage the plaintiff or patient, or assign blame to a co-defendant in the presence of anyone but defense counsel, according to Volpi.
One defendant EP told her medical partner (a non-party EP) that the defendant EP had a rough night the night before she cared for the plaintiff; in hindsight, she “should have taken the day off rather than try to rebound and treat patients.”
“I learned this before the non-party EP was deposed and it caused us to pay more in settlement than we otherwise would have,” Volpi recalls.
As for a colleague who is not named in the lawsuit, Volpi says to remember that serving as a sounding board for the defendant could mean receiving a deposition subpoena. “If a non-party EP finds himself hearing things about a lawsuit that he knows the defendant EP would not want a jury to hear, the non-party EP should shut down the conversation,” Volpi stresses.
If a non-party EP ends up subpoenaed, he or she “should tell the truth above all else,” Volpi says. It may seem honorable to attempt to cover for a defendant EP, but perjury can drastically affect a non-party EP’s license and career.
“The subpoenaed non-party EP should hire an attorney to determine if the subpoena can be quashed,” Volpi says. The most common grounds for quashing a subpoena are procedural shortcomings in the preparation and service of the subpoena. Less commonly, a subpoena can be quashed if the subpoenaed EP can demonstrate the subpoena is a significant burden that would dramatically affect his or her practice (e.g., the deposition is scheduled during a time when he or she cannot take time off).
If not, it is best to deliver the truth in the light most favorable to the defendant EP. “The non-party EP should testify that the defendant EP ‘voiced regret for plaintiff’s poor outcome’ rather than ‘He told me that he really screwed up and was expecting this lawsuit,’” Volpi adds.
Amy Evans, JD, says there are two main triggers for a deposition notice or subpoena: If the ED provider’s name appears in the medical record and/or if the person’s name is mentioned by any party or witness to the case.
“Attorneys will question the ED provider about all aspects of the discussion,” says Evans, executive vice president of the liability claims division at Bellevue, WA-based Intercare Insurance Services. They will cover the time, place, setting, witnesses, participants, what prompted the discussion, what was said, what they thought, and what they did thereafter. “It can become a bad case of ‘telephone,’ especially when memories and testimony differ as time passes,” Evans says.
This can create “poor optics, and increase the value and exposure in a case,” Evans adds. That is true even if the discussion had no bearing on the medical care provided.
“Attorneys will also attempt to use the ED provider as a de facto expert witness in the case,” Evans explains. ED providers will be asked their medical opinions, what they would have done, and what should have been done. The attorney will ask these questions regarding both the facts of the case at hand and various hypothetical situations.
“The ED provider may also be asked their opinions about the defendants in the case, their professional and personal reputations, any rumors about them, and any knowledge of bad outcomes or complaints,” Evans says.
Evans says the safest bet for EP defendants is to vent about the lawsuit only with their retained attorney. All such discussions are protected by privilege. EPs also should discuss the spousal privilege in their state with the attorney to ensure that those discussions are protected, too. “Therapy or counseling is also an option, which should provide privilege as well,” Evans adds.