Blaming colleague? It may increase legal woes

(Editor's Note: This is the first part of a two-part series on actions physicians should take after being named in a lawsuit. This month, we cover why physicians should avoid placing blame on colleagues. Next month, we'll give recommendations on what information physicians should review.)

If a nurse practitioner claims a physician made a mistake that harmed a patient, and the physician in turn blames the nurse, the plaintiff "just has to sit back and wait for them to prove the case against each other," says Roger L. Hillman, JD, an attorney with Garvey Schubert Barer in Seattle.

Plaintiffs typically name all of the practitioners involved in their care, and all are presumably eager to be dismissed. "But the last thing they should start doing is proving the plaintiff's case for them," says Hillman. "The plaintiff has the burden of proof." To avoid placing blame on colleagues:

• Don't offer opinions on the care of others.

"If Doctor A is being deposed and is asked for his opinion of care rendered by Doctor B, the answer is, 'I wasn't hired as an expert witness. That is not for me to say. I can't offer an opinion on someone else's care,'" Hillman advises.

A fact witness is not obligated to have an opinion, explains Norm Jeddeloh, JD, an attorney with Arnstein & Lehr in Chicago. If the plaintiff's attorney asks, "Didn't Dr. Smith err in the way he did the coronary bypass?" he advises that the physician being deposed state, "I don't have an opinion about that," or "I wasn't there, and I haven't reviewed it."

• If a colleague criticizes your care, don't automatically respond in kind.

David S. Waxman, JD, an attorney with Arnstein & Lehr, says, "When somebody throws a bomb in your direction, you have to decide how to respond. Sometimes you can absorb the blow and move on constructively."

• Remember that you may be able to get out of a case without harming your colleagues.

"There are times when it is somebody else's fault," says Waxman. "If you are not responsible, your desire is to get out of it. Nobody wants to be a defendant for an hour longer than they have to be."

If you can avoid causing problems for other individuals named in the suit, however, "it's usually the better path," says Waxman. "That is where you work with your lawyer about how to be truthful without necessarily making the situation worse."

Is there an expert?

If the plaintiff has an expert witness to testify about a physician's care, "you are going much deeper in the process than you would otherwise. That means you will either settle or go to trial," says Waxman.

If the plaintiff has not identified an expert witness against a particular physician, the defendant might move for summary judgment, which would put the plaintiff in the position of revealing the expert witness sooner than he or she had planned on doing or risk having the motion granted, says Hillman. "If the expert opinion says that Dr. A was wrong for this reason and Dr. B was wrong for that reason, and says nothing at all about Dr. Z, then Dr. Z can file for summary judgment," Jeddeloh explains.

It is "extremely rare" for a case to proceed if the plaintiff does not have an expert witness, according to Waxman. "There are exceptions, but if the plaintiff doesn't have an expert who will pull the trigger against a defendant physician, it would be quite unusual if that physician was not dropped from the case," he says.

Even if the plaintiff does have an expert witness against you, it might be strategically advantageous for them not to make a case against you if they have a stronger case against your colleague, notes Waxman.

"You may be able to get out without necessarily hurting any of your colleagues," he says. "This is where litigators occasionally have to be diplomats."

Sources

For more information on avoiding finger-pointing during litigation:

  • Roger L. Hillman, JD, Garvey Schubert Barer, Seattle. Phone (206) 816-1402. Fax: (206) 464-0125. Email: rhillman@gsblaw.com.
  • Norm Jeddeloh, JD. Arnstein & Lehr, Chicago. Email: npjeddeloh@arnstein.com.
  • David S. Waxman, JD, Arnstein & Lehr, Chicago. Phone: (312) 876-7867. Fax: (312) 876-0288. Email: dswaxman@arnstein.com.