Named in suit? Increase odds of being dismissed
First, the defense attorney will need the facts
Early dismissal of defendant physicians is always the goal for both sides in medical malpractice litigation, says Erin L. Muellenberg, JD, an attorney at Arent Fox in Los Angeles.
"The plaintiff’s attorney does not want to waste his time or resources on a defendant physician who will have a strong defense if there are other physicians or a hospital that is a better target," Muellenberg explains.
However, plaintiff attorneys cannot dismiss defendant physicians until they have the facts to do so; to do otherwise could leave them open to claims of legal malpractice, she says.
Often, dismissals will not occur until late in the process after all expert depositions have been taken. "When the expert depositions point to no or minimal liability of a defendant physician, then the physician will generally be dismissed and the case will proceed against the physicians or hospital with more liability exposure," Muellenberg says.
Plaintiff attorneys might keep a physician in a case in order to increase pressure on other defendants to settle, or because other defendants have insufficient professional liability coverage, she adds. If named in a suit, physicians should consider these actions, which could increase the likelihood of dismissal:
• Don’t withhold information from your attorney.
"Litigation is about information control," Muellenberg says. "An attorney will use the information selectively to work with opposing counsel for an early dismissal."
For example, a client surgeon could share the fact that he was not in the room at the time of an incident, which isn’t apparent from the records, or the fact that another physician gave the order for the wrong medication. "Or maybe there is evidence that a death was not caused by a particular treatment," says Muellenberg. "Knowing these facts early will let the attorney negotiate an early dismissal."
The worst thing the defendant can do is not tell the attorney an important negative fact because the physician is hopeful that it will not come out in the case, according to John Davenport, MD, JD, physician risk manager of a California-based HMO.
In one malpractice case, it was revealed that a doctor actually scrubbed out of a surgical case to place a series of bets through his cell phone. "He admitted that he had scrubbed out for a period of time, but told his attorney that it was to attend to a biological urgency," says Davenport.
The plaintiff attorney obtained the physician’s cell phone records and was able to document the time and the target of the calls, which resulted in a large settlement. "Only if the attorney knows everything about the case, the good and the bad, can he prepare an effective defense or a reasonable settlement," says Davenport. (See related story, below, on the need to cooperate with counsel.)
• State only the facts regarding the cause of an incident.
"Defendants should not voice opinions. That is the job of experts," says Muellenberg. "Their role is to be the percipient witness and talk only about their personal involvement," she says.
• Consult with your attorney about offering expert opinions early to achieve a dismissal.
If an anesthesiologist gives the wrong medication and the patient dies, and the autopsy reveals that the cause of death was a ruptured cerebral aneurysm, an expert’s opinion could potentially dismiss the anesthesiologist from the case.
"If the expert opines that the medication had no neurological effect and could not have caused the aneurysm to burst, the plaintiff’s attorney would confirm with their own expert and then dismiss the case," says Muellenberg.
Uncooperative MD? You might be kept in case
During recent malpractice case, a supervising physician named in the lawsuit refused to cooperate in providing dates he was available to be deposed and failed to send required discovery responses.
"Although he was not directly involved in the negligent act, he was kept in the case and forced to go through discovery, because he was difficult to deal with. The family had directed the plaintiff’s attorney to make him suffer,’" says Erin L. Muellenberg, JD, an attorney at Arent Fox in Los Angeles.
If physicians are dismissive of the legal process, they might be kept in the case even if they have minimal liability. "Cooperation is essential to dismissal," says Muellenberg.
Lawsuits are public and how you handle any phase might wind up in a public document that is accessible to anyone or any organization, she warns.
Attorneys sometimes keep a physician in a case simply because he or she has dodged service or been rude and abrasive over the phone, says Muellenberg.
"Sometimes physicians think that they can call and talk their way out of the lawsuit," she says. "This is an ill-advised approach. The information that a plaintiff’s attorney gains in any such contact will be used against the physician."