The outcome of a medical malpractice claim can be determined by how it is handled from the outset. Avoid some of the most common mistakes.
- Involve legal counsel as soon as possible.
- Secure relevant documentation and other material immediately.
- Notify insurance carriers promptly.
Although a medical malpractice claim can drag on for months or years, the ultimate outcome of the case may be determined by what happens in the first hours or days. Some mistakes and oversights can put you at a disadvantage when defending against the claim.
Engaging legal counsel to assist in investigating claims and to represent defendants is prudent at the outset of a claim or litigation, says Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA.
“Understanding the parties involved, including each defendant’s specialty, alleged involvement in the care at issue, employment status, and insurance coverages and limitations, are important at the outset of a claim or litigation,” Greene says. “Similarly important at the outset of a claim is securing medical records, and when appropriate, imaging studies, pathology, instrumentation, and metadata.” (See the story in this issue on the do’s and don’ts of handling claims.)
Putting the appropriate insurance carriers on timely notice of the claim is vitally important, Greene says. If appropriate to the facts and issues in a matter, exploring the potential for presuit resolution is good practice, she says.
“Where a matter cannot or should not be resolved presuit, then during litigation the risk manager can help ensure the best outcome by periodically reviewing the established facts and assessing the strengths and weaknesses of the claims and defenses, including the discovery from all parties to the litigation and the expert witness opinions,” she says. “Keeping the insurers and appropriate individuals within the hospital system apprised of any changes in the assessment of the case is important. A best practice is to diary appropriate intervals for case assessment and reporting.”
Risk managers can help ensure the best outcome for the case and the hospital system by supporting the providers within the system, and understanding when it is appropriate to assign legal counsel for nonparty witnesses employed by the hospital, Greene says.
At times, during a case and/or at the conclusion of a matter, it may be important for the risk manager to assist in properly addressing the media in a manner that is coordinated with the appropriate constituencies in the hospital and litigation counsel, she adds.
Greene notes some key points to keep in mind include understanding the role of each party, the nature of the claims, the defenses raised, and the scope of available coverage. Track significant changes or developments as the claim progresses from inception to the final resolution of the matter. Appropriately communicate the status of the claim and significant developments within the hospital system and with insurers.
“The provider defendant has the most impact on the outcome of the claim. A provider who is well prepared and understands the litigation process will best be positioned to demonstrate their clinical knowledge and expertise in a nonthreatening manner, so as to connect with the jury,” she says. “Ultimately, a provider who instills a level of confidence in jurors such that they would choose that provider to care for their loved ones will have the most impact on the outcome of the case.”
Identify the key participants in the case so you can talk to them while memories are still fresh, notes Carol Michel, JD, partner with Weinberg Wheeler Hudgins Gunn & Dial in Atlanta.
“So many times when the lawsuit comes two years after the occurrence, memories have faded by that time and it is hard for these people to remember exactly what was done or said,” Michel says. “It also is important to support and prepare those people for depositions.”
Michel has seen problems in which risk managers engaged in direct communication with plaintiff’s counsel. She says that is almost always a bad idea.
“Representations may be made, or things may be said that later come back to be an issue in the case — things that did not need to be an issue in the case and just complicate the matter,” she says.
Policies and procedures often will become a central point in a medical malpractice case. It is necessary to review them and assess how uniformly they are followed, says Savera Sandhu, JD, partner with Newmeyer Dillion in Las Vegas.
“We need to know how often they update them, how often they speak to the medical staff about them, and how often the staff is trained if there is a revision in the policies” Sandhu says. “Hospitals often fail to talk to all the staff involved to determine uniformity of the applicable policies and procedures for that patient. I highly recommend that once you receive notice of the suit, the hospital and counsel should get everyone involved in the event together to go over the chronology of treatment and the order of who treated the patient.”
That meeting can create a uniform story and understanding of events. “Once you’re in deposition, all the nurses and staff have the same uniform discussion about the chart and their scope of work. The doctors have a clear chronology of who was involved and in what order, and you have a clear picture of the uniformity of how policies and procedures were followed.”
An important aspect of the document preservation is not just gathering all the pertinent material, but showing no relevant documents were left out, says Jeff Kerr, JD, a former litigator and the CEO of fact management company CaseFleet in Atlanta.
“A critical thing in litigation today is ensuring that you have all the relevant documents but also that you can demonstrate you have all of them and you haven’t left out certain kinds of documents or allowed them to be overwritten, or made them more difficult to access,” Kerr says. “You don’t want to look like you’re concealing anything or giving the other side any reason to think you’re being less than transparent about the evidence.”
- Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: firstname.lastname@example.org.
- Jeff Kerr, JD, CEO, CaseFleet, Atlanta. Phone: (800) 968-3994.
- Carol Michel, JD, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta. Phone: (404) 832-9510. Email: email@example.com.
- Savera Sandhu, JD, Partner, Newmeyer Dillion, Las Vegas. Phone: (702) 777-7513. Email: firstname.lastname@example.org.