If ED providers receive a notice of intent to sue, most would not put off calling their professional liability carrier. “However, they may have known that a lawsuit was possible sooner, but hesitated to make that same call,” says Bobbie S. Sprader, JD, a partner in the Columbus, OH, office of Bricker & Eckler.

One reason for this hesitation is EPs are concerned about negative consequences — namely, higher insurance premiums or even loss of coverage. Additionally, some insurance companies only assign a lawyer after a lawsuit is filed or a deposition is requested. Others are willing to be more proactive. “It really varies by insurance carrier,” Sprader explains.

If the EP waits until a lawsuit has been filed, the plaintiff will have performed at least an initial investigation. Likely, experts will have reviewed the records and analyzed the care provided.

“This can put the EP at a distinct disadvantage. There can be great value in speaking with an attorney early in the process,” Sprader offers.

EPs should consider these reasons for contacting their liability carrier and requesting to speak with an attorney if there has been an unexpected bad outcome:

  • There may be an opportunity to preserve evidence that could help the defense that otherwise would be lost.

Some audio and video recordings in various locations and formats, along with handwritten logs, are maintained only for short intervals (days to weeks) — if someone does not intentionally preserve them.

“While EPs can work with the owners of this information — frequently, hospitals — to have it preserved, this is rarely something that occurs to them,” Sprader says. “It will, however, occur to the attorney, who can help the EP find the best approach to preservation.”

  • EPs can record their own recollections about the case.

If the lawsuit is filed, it will be months or years later. By then, the EP probably will not be able to remember the specifics of the case.

“A defense attorney can help the EP consider how to best preserve their recollection of events above and beyond what is in the hospital record,” Sprader says.

  • It is a chance for the attorney to advise the EP about applicable protections.

Understandably, an EP who is involved with a case where the outcome was not what anyone had hoped for seeks reassurance from others. “However, depending on who the EP speaks to, they could be creating evidence and witnesses, possibly even adverse witnesses,” Sprader cautions.

For example, if an EP speaks with another ED provider who finds fault in the care that was provided, that conversation could end up disclosed in a future lawsuit. Now, that ED colleague is a witness for the plaintiff, regardless of whether they like it. “If the EP speaks with an attorney, they will at least know which conversations are protected and which are not so that they do not engage in conversations where there is no protection,” Sprader says.

  • EPs can review the ED chart without going into the EMR.

Plaintiff attorneys are going to look closely at the EMR audit trail to see what an EP looked at, when, and even from what location. “Of more concern is the implication that the EP may have done more than just look. Now, the validity of the charting is in question,” Sprader says.

Unless the EP has been counseled not to do it, it is a natural reaction to go into the chart to see what went wrong. “This can complicate the defense of the claim and distract from the actual care that was provided, which should always be the focus,” Sprader says. Through an early consultation, the attorney can request a hard copy of the ED medical records. “This gives the EP full access to their documentation, without creating ancillary issues that have nothing to do with the clinical care that was provided,” Sprader says.