EXECUTIVE SUMMARY

Watch out for common mistakes made after receiving notice of a medical malpractice lawsuit. The first steps taken after service can affect the outcome.

  • Do not be overly defensive.
  • Carefully consider early offers.
  • Review the facts and assess the case as early as possible.

When a healthcare professional receives notice of a lawsuit, everything he or she does from that moment forward can affect the outcome, for better or worse. Knowing the most common mistakes to avoid can help lead to the best resolution.

An overly defensive response can set everything off on the wrong foot, says Brett Timmons, JD, senior attorney with Sargent Law in Dallas.

“In my experience, when a hospital, doctors, or nurses try to circle the wagons as if they have something to hide, that really ramps up the other side. When faced with a medical malpractice lawsuit, you always want to be upfront and fully disclose the facts of what happened,” he explains. “Be fully transparent and do not withhold information that opposing attorneys are going to find during discovery.”

One of the biggest pitfalls that can lead to a longer and more contentious litigation is failing to preserve records, says Christopher J. Ryan, JD, an attorney with Dickinson Wright in Ann Arbor, MI.

In the healthcare context, most medical records must be kept for a set amount of time. But many hospitals and physicians do not think about documents outside the medical record that may later serve as key evidence in a medical malpractice case.

“Emails, text messages, pictures, voicemails, and other pieces of evidence should be preserved. As it relates to that patient, any auto-delete or automatic purging of documents should be stopped the moment a lawsuit is filed,” Ryan says.

Do Not Alter Records, Even with Good Intent

One of the worst mistakes a hospital or physician can make is to alter records, regardless of motive, Ryan says. It might be illegal, depending on the jurisdiction and the nature of the alteration.

“But altering the records does not always mean there was an improper motive for doing so. After learning of a lawsuit, many physicians’ natural first reaction is to look up her or his documentation,” he says. “Often, the physician may remember key details about the interaction that, for whatever reason, did not make it into the medical record. Even if the physician alters the record to make it more accurate or more complete, it invites the other side to try to paint the alteration as a nefarious cover-up.”

Many times, medical malpractice defendants do not secure an expert review of the records as soon as they receive notice of a lawsuit, says Kelli L. Sullivan, JD, shareholder with Turner Padget in Columbia, SC. That is a mistake.

“They often wait until the plaintiff’s expert is deposed and then try to secure an expert. It is important to know within the first 60 to 90 days of a case whether you can defend the case on standard of care, causation, both, or neither,” Sullivan says. “Knowing the medical pitfalls of your case can make your discovery and depositions more precise and allow you to focus on what makes your case winnable.”

If the physician holds a consent-based insurance policy, an early review can help set the stage to manage expectations, she says. It is difficult to have a meaningful discussion with defendants about consent to settle without a good idea of the strengths and weaknesses of the case from a medical perspective.

Consider Early Offers

One of the biggest mistakes Sullivan has seen is the failure to consider an offer of judgment that comes early in the litigation process. In South Carolina, if a plaintiff files an offer of judgment and it is not accepted, and later receives a verdict equal to or better than the offer, the defendant is responsible for certain costs as well as interest in the amount of 8% per year on the ultimate verdict.

“Since courts are moving very slowly these days, and since medical malpractice cases in general take a long time to litigate, the 8% can add up very quickly, especially if there are appeals or similar delays in the case,” Sullivan explains. “A $200,000 offer of judgment may not seem that important, but that number gets significantly higher three years later when the case is finally tried.”

For example, Sullivan explains that if a plaintiff files a $200,000 offer of judgment within the first few months of the case, and then three years later receives a $220,000 jury award, the defendant ends up paying $277,000. Many states have similar provisions.

“This point goes along with the earlier advice to evaluate your case early,” she says. “If you have evaluated the case up front, you have a good idea of the value of the case and can respond to these types of offers appropriately.”

Another mistake defendant physicians regret is a failure to adequately prepare for deposition.

“Many physicians really dislike taking time away from their practice and patients to spend hours preparing for a deposition. However, many times, cases are heavily influenced by how well the physician performs at deposition and whether they are likeable, articulate, and believable,” Sullivan says. “I often have at least two sessions with my clients that are two or three hours each. The first focuses on the fact and the records, and the second is a mock deposition, which is often videotaped for the physician to watch again to see where he or she can improve. It’s a time investment, but it pays off every time.”

Do Not Cut and Paste

Certain misjudgments on the part of physicians or hospitals can complicate, or even jeopardize, the results of a medical malpractice lawsuit, says Jeffrey M. Feldman, JD, founding partner of Feldman, Kleidman, Coffey & Sappe in Fishkill, NY. An example is altering patient medical records or distorting facts when communicating with patients and families to cover up the cause of a bad result.

Other pitfalls include casting blame on another physician for an unfavorable patient outcome, and billing for tests or procedures that are not performed, he says. Cutting and pasting entries within a chart without proofreading for accuracy can give a patient’s attorney fodder to allege that other aspects of the charting are inaccurate.

“Another mistake that medical providers can make is purchasing malpractice insurance coverage from a company based solely on price. If the insurer goes bankrupt because it is poorly capitalized, the physician or medical group in question may not have the insurance coverage needed when a claim is made or decided,” he says. “Think of it this way — you should not pay for a Ford and expect a Rolls Royce.”

Jack G. Gresh, JD, partner with Hall Booth Smith in Mount Pleasant, SC, says two significant issues lead to longer, more contentious litigation — and they go hand in hand.

First, failing to quickly and realistically evaluate the claim from the standard of care, causation, and damages perspective leads to unnecessarily drawn-out discovery. Set a goal to address these issues in the first 90 days of litigation, he suggests. These issues must be addressed anyway, so jump on them early.

“Similarly, the most underutilized tool a lawyer has, particularly now, is the telephone. Opening up a line of communication early with opposing counsel allows both to see the case from the other’s perspective,” he says. “Talk about what they see in their case, get information informally, and establish rapport. Keeping those lines of communication open will allow the case to be resolved quicker and more efficiently than recalcitrant, close-to-the-vest discovery.”

Early Evaluation Crucial

When evaluating a case in retrospect, both physicians and hospitals often regret a failure to evaluate the case early, says James E. Looper, Jr., JD, partner with Hall Booth Smith in Nashville. That evaluation must assess standard of care, causation, and damages.

“Without an evaluation of all three, either the suit is settled when it should have been tried, settled for too much money, or tried when it should never have seen the courtroom,” he says. “Each of these ends in a negative outcome that could have been avoided by having an early and accurate assessment of liability and damages.”

In addition, defendants sometimes regret defending a high-exposure case for mediation instead of trial.

“When the case is defended in this fashion, plaintiff counsel knows, and the value of the case is higher. But if plaintiff ‘s counsel knows you’re ready to try the case and potentially lose but at a much more palatable damages number, they will be more serious at negotiation,” Looper says. “It also prevents any surprise of having to try a case because you could not settle when you are not prepared to do so.”

The most important thing a physician can do is to speak with his or her attorney as soon as possible, says Jonathan Cohen, JD, co-founder of Cohen & Winters in Concord, NH.

“Do not try to handle the case on your own, and do not speak to anyone else about the matter,” Cohen says. “Doctors are trained to fix problems, but they must remember that this is one situation that you have to let go of the control and allow the attorney to do the work.”

It is important to track everything, Cohen says. Collect all documents and notes related to the case, and do not forget to collect notes from nurses, EMTs, and anyone else involved in the treatment.

“The physician should be involved in the process,” Cohen says. “Physicians can educate themselves on the litigation process. That will make everything smoother and will take some stress off their shoulders, as they will know what to expect.”

Consider Effect on Physicians

Timmons notes that medical providers want to help people and they are motivated by that commitment. When mistakes happen, practitioners regret the care they provided and should look for lessons in the experience.

“For many, these experiences make them better physicians. But in some situations, this can lead to a loss of perspective, culminating in the decision to leave the profession entirely if they cannot move past the mistake,” he says. “In either situation, litigation is frustrating because they cannot change what happened. In my experience, I have not come across a healthcare professional that does not take to heart the mistake that occurred.”

Most people do not realize how extraordinarily stressful medical malpractice lawsuits can be for physicians, Ryan says. One of the most common mistakes Ryan sees is physicians trying to deal with that stress by pretending the lawsuit does not exist. This results in a lack of communication between the physician and the attorney.

“Most physicians became doctors because they truly wanted to help people. The way physicians react when faced with an accusation that something they did caused another person harm varies significantly,” Ryan says. “For some, it seems to have little effect on them; for others, it is crippling. I try to remind my clients not to let lawsuits define them. Physicians should discuss their concerns with their attorney, and if necessary, seek mental health assistance.”

SOURCES

  • Jonathan Cohen, JD, Co-founder, Cohen & Winters, Concord, NH. Phone: (603) 945-7971. Email: jcohen@cohenwinters.com.
  • Jeffrey M. Feldman, JD, Founding Partner, Feldman, Kleidman, Coffey & Sappe, Fishkill, NY. Phone: (845) 897-5199.
  • Jack G. Gresh, JD, Partner, Hall Booth Smith, Mount Pleasant, SC. Phone: (843) 720-3474. Email: jgresh@hallboothsmith.com.
  • James E. Looper, Jr., JD, Partner, Hall Booth Smith, Nashville. Phone: (615) 313-9911. Email: jlooper@hallboothsmith.com.
  • Christopher J. Ryan, JD, Dickinson Wright, Ann Arbor, MI. Phone: (734) 623-1907. Email: cryan@dickinsonwright.com.
  • Kelli L. Sullivan, JD, Shareholder, Turner Padget, Columbia, SC. Phone: (803) 227-4321. Email: ksullivan@turnerpadget.com.
  • Brett Timmons, JD, Senior Attorney, Sargent Law, Dalla. Phone: (214) 749-6908. Email: brett.timmons@sargentlawtx.com.