Caught in plaintiff's 'wide-net' approach? Sit tight is sometimes best approach
While a defendant served with a new lawsuit often cannot believe that someone would be willing to criticize his or her care, the truth is that an expert already has offered a critical opinion, says Ryan M. Shuirman, JD, an attorney at Yates, McLamb & Weyher in Raleigh, NC.
"Some physicians believe that all the defense lawyer needs to do is pick up the phone and call the plaintiff's lawyer and explain how the defendant could not have committed malpractice," he says.
In North Carolina, as in many other states, a plaintiff who files a malpractice claim must have had the case reviewed by someone who is reasonably expected to qualify to testify on the standard of care applicable to the defendant and also must also concluded that the care provided by the defendant was substandard. "Because of this pre-filing requirement, a plaintiff's lawyer who has filed suit against a defendant must have retained some expert witness who is prepared to come into a courtroom to be critical of a defendant," Shuirman says.
In lawsuits filed just prior to the expiration of the statute of limitations, however, a defendant might be included because an expert is critical of the care provided, but the causal relationship between the alleged malpractice and the patient's outcome has not been fully explored.
Here are some possible strategies for physicians who were only tangentially involved in the plaintiff's care:
• Discuss with counsel and insurance company the options available to try to obtain a dismissal at an early stage of the case.
Scott T. Heller, Esq., an attorney with Reiseman, Rosenberg, Jacobs & Heller in Morris Plains, NJ, says, "It's rare for plaintiff's counsel to agree to dismiss with prejudice, meaning you can't be brought back in the case, especially at an early stage of the case. The plaintiff is more likely to agree to a voluntary dismissal without prejudice.
If subsequent discovery shows that the physician really wasn't involved, this can be converted to a dismissal with prejudice, with the understanding that the doctor can be brought back into the case if good cause is shown.
• Allow the discovery process go forward.
Often the best approach is to wait until the dust settles through discovery and depositions.
"Maintain a consistent position that the care provided was appropriate and did not cause the bad outcome of which the plaintiff is complaining," says Shuirman.
While obtaining an affidavit of merit to keep a physician in the case isn't terribly costly, at a later point in time after depositions have been taken, an expert will have to specify alleged deviations from the standard of care.
"That is a much more expensive proposition, so the plaintiff lawyer might decide it's not worth the expense," Heller says. "Sometimes, it is better to just sit tight and wait, and try to get a dismissal later."
• Early in the case, physicians should meet with defense attorneys to review the available records regarding the doctor's involvement or lack thereof.
Heller has defended physicians who claimed to have no involvement in the case, "but in looking at the records, it turns out they actually were involved." Physicians might have had a supervisory role for others involved in the patient's care or might have communicated with others and it wasn't documented in the chart. If subsequent discovery shows the doctor was involved, he or she can be brought back into the case and could face possible sanctions.
"The doctor may find he or she can hardly testify to a vivid recollection of their participation in the care, when the doctor previously denied any involvement," adds Heller.
• Offer to appear for deposition at an early stage of the case, in the hope that the physician's limited involvement will be recognized.
This step has its own potential pitfalls, including the fact that plaintiff's theory of liability might not be well-understood. This situation makes it more difficult to prepare for the deposition of the defendant doctor, especially at the outset of the case, says Heller.
"This could result in a doctor unwittingly giving testimony which may prove harmful to his or her interests or the interests of colleagues who are or may become codefendants in the case," he says. (See related story on NPDB reporting, below.)
When must sued physician report to NPDB?
One of the benefits of settling a malpractice lawsuit is a feeling of closure for the physician.
"It provides finality," says Ryan M. Shuirman, JD, an attorney at Yates, McLamb & Weyher in Raleigh, NC. With a proper confidentiality provision, a settlement only allows people to know that a case was voluntarily dismissed if someone were to look in a public court file.
However, under current rules, any settlement that includes an indemnity payment to a claimant will result in a report to the National Practitioner Data Bank (NPDB). "If a physician does not want to be reported to the NPDB, then no settlement which includes an indemnity payment to a claimant can be considered," Shuirman says.
Sometimes, however, opportunities exist to resolve cases with cost reimbursement to the plaintiff's lawyer for expenses incurred in the litigation, he adds. This would not require a report to the NPDB. "A plaintiff or plaintiff's lawyer may lose appetite for a suit as evidence disclosed in discovery demonstrates that the plaintiff is unlikely to prevail at a trial," Shuirman says.
In this scenario, an agreement to reimburse the plaintiff's lawyer for the costs of the litigation allows the plaintiff to dismiss the case without having a debt owed to the plaintiff's lawyer. "It allows the plaintiff's lawyer to move on to another matter, having only lost his or her time invested in a case, which proved to be unfruitful," he says.
As unappealing as it might seem to allow the plaintiff and plaintiff's lawyer to get back to "even" through a cost reimbursement, such an agreement is likely to have the least negative impact on the physician, Shuirman says. "It may allow the physician to report on future licensure or credentialing applications that no indemnity money was paid on his or her behalf to settle a claim," he explains.
Agreeing to settle with an indemnity payment of a small amount would trigger a report to the NPDB. "But it may still be a better outcome than accepting the risk of a large jury verdict, in cases where aggravating circumstances may impede a jury's ability to appreciate the 'innocent' defendant's 'innocence,'" Shuirman says.
He often advises defendants that having no settlements reported to the NPDB is better than having one, but having one small report to the NPDB is better than having one large verdict to report or more than one settlement to report.
"The physician should also keep in mind who would be looking at an NPDB report in the future and whether a future credentialing committee, for instance, would understand the decision to settle for a small amount without a great deal of explanation," Shuirman says.