Don't Hide Details About Suits or Settlements

"Candor is essential"

Emergency physicians (EPs) named in lawsuits likely won't be eager to answer detailed questions about their legal problems years down the road, but there are situations in which they'll need to do so.

"The natural tendency is that you would like to forget about it and have it go away," says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney. "To think people are not going to ask about it is wishful thinking."

If the EP seeks employment with a group, or requests privileges at a hospital, he or she should be ready to explain any previous suits or settlements. "The EP may have to explain to their colleagues why the practice is taking this particular hit on their loss experience," adds Frew. "Most physicians in the group are going to know an honest explanation when they hear it. That is the only thing that is pretty certain, so candor is essential."

A single loss, even if large, does not automatically hurt an emergency medicine group, he explains, and an insurer reviewing the group's loss experience will want to know what the group has done to improve its risk profile, such as changes in policies and procedures to reduce risk. "They are looking at the group as a whole, and they are expecting some occasional losses," says Frew.

When an individual EP applies for privileges, however, he or she may be viewed in an unfavorable light after disclosing a previous settlement.

"In the state of Florida, they don't give you a license if you've been sued three times. Medical organizations were unsuccessful in convincing the legislature that lawsuits don't equal incompetence," says Frew. "We have the same kind of attitude in some hospitals: we're not going to take anybody who's ever been sued."

Even though a judgment or settlement doesn't necessarily mean any malpractice has occurred, says Frew, there's always the chance that the EP named in the suit will be penalized going forward. He gives these recommendations for an EP to follow after a settlement or verdict in a suit by a patient:

• The EP should be prepared to address the facts of the suit.

"The EP needs to manage how it will be presented," he says. "Going into a privileging situation, a new employment situation, or a new insurance policy, you need to know what you are going to tell people about this event."

EPs should work with their trial attorneys to articulate a professional and understandable explanation about the suit, Frew advises, or seek advice from a physician counselor if one is available through the insurance company.

"The EP may validly feel that they were wronged in the verdict and that it was a bad outcome that bore no resemblance to the facts," says Frew. In this case, he says, EPs need help from an experienced professional in order to present a positive image of themselves in the future.

"The reality is that trying to minimize, or not disclosing, these things — especially since they are going to be in the National Practitioner Data Bank anyway — seriously hurts the applicant," says Frew.

• The EP should obtain a letter of explanation from an attorney involved in the case.

The letter should give details on the facts involved, witnesses who testified on the EP's behalf, and the financial decision-making that went into the decision to settle.

"This gives an honest, credible explanation that makes the EP look reasonable, even though there was a settlement," says Frew. The attorney's letter is particularly helpful if a jury made a decision to award the plaintiff money, he notes, because "then it is a little harder to convince some people that although they returned a verdict, there was nothing to support it."

• If an error was made that harmed a patient, the EP should specify what actions he or she took to improve professionally, such as additional education or time spent proctoring.

"This is especially important if the EP slipped up when most people wouldn't have," Frew says. The goal is to convince others that the EP is taking responsibility to be sure the mistake doesn't happen again.

"Remember that the person hiring has talked to EPs who have screwed up much worse than you," adds Frew. "If you appear to be conscientious in addressing it, they will generally look at your attributes without necessarily focusing on this claim."

At the same time, cautions Frew, being overly remorseful, angry, or upset by the incident may cause the future employer or credentials committee to question whether the EP will be a strong practitioner under ED stress.

• The EP should avoid placing blame on others.

"The biggest error I see in these situations is attempting to blame somebody else, even if it was their fault and not yours," he says. "The physicians or board reviewing the application will wonder if the EP is prone to putting off errors on other people."

It is not uncommon for EPs to get sued for something a specialist did, for instance. "The specialist may have come in, took over, made a mistake, and everybody who touched the patient got sued," says Frew. "Settlements often don't allocate fault, and make it appear everyone was equally to blame."

In such a case, Frew says the EP should obtain a letter from his or her attorney placing the blame on the responsible parties. "The EP might say, 'I don't feel comfortable criticizing others, but if you'd like to read my attorney's explanation, it's pretty explicit how this occurred,'" he says.

• The EP should be forthcoming with details.

When the EP is asked to provide the specifics of any previous settlement or suit on an application, he or she may just give the name, date, location, and outcome. "This is only going to result in an inquiry for more details," says Frew.

Another reason to give a detailed, frank accounting of what occurred is that once a committee wants to hire the EP or grant privileges, the hospital board will still need to be convinced.

"The board is still the final arbiter of whether or not you are going to get privileges, and you won't be there to answer their questions," says Frew. Medical officers and credentialing committees armed with only sparse details may struggle to explain to the board why they want to hire somebody with a past malpractice suit.

"By giving them the ammunition to defend you, they will often be an advocate," he adds. "But if you leave them to guess about what happened, they will have doubts of their own."

Some physicians on the credentialing board will have had their own experiences with malpractice allegations, notes Frew, and will be looking for signs that the EP has come out of it stronger and wiser. "If the EP can discuss an incident openly, frankly, and credibly, I have not seen most issues like this be a problem," he says.