Practice Economics

Doctors’ first steps after lawsuit filing are vital, warn attorneys

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Malpractice trends worth watching

A 2011 study in the New England Journal of Medicine estimated that 75% of physicians in "low-risk" specialties and virtually 100% of physicians in "high-risk" specialties could expect to face a malpractice claim sometime in their career (N. Engl. J. Med. 2011;365:629-36). However, 60% of liability claims against doctors are dropped, withdrawn, or dismissed without payment, and physicians are found not negligent in over 90% of cases that do go to trial.

While there are no readily available national statistics on the actual number of claims filed, there is data, compiled by the federal government’s National Practitioner Data Bank (NPDB), suggesting that the number of cases filed has been dropping in the last decade.


Dr. James A. L. Mathers Jr.

The NPDB issues an annual report that includes the number of medical malpractice payments made each year for the preceding 10 years. For nearly every year in the past decade, the number of medical malpractice payments made on behalf of all practitioners reported to the NPDB has decreased. Between 2002 and 2011, the number of medical malpractice payments decreased nearly 40%, declining steadily from 18,696 to 11,424.

Also, in the past 10 years, the number of medical malpractice payments reported to the NPDB, attributed to physicians and dentists, has decreased steadily from 17,155 to 10,038. Between 2003 and 2011, the total amount paid out fell from $4.5 billion to less than $3.2 billion, a 29% drop. State tort-reform laws limiting noneconomic damages, growth in risk management responses to adverse events, and the growing use of apology and disclosure likely have contributed to this trend.

Dr. James A.L. Mathers, Jr., is a past president of the American College of Chest Physicians, and is recently retired with 30 years of private practice experience in pulmonary, critical care, and sleep medicine.


 

Receiving notice that a patient is suing can spark a range of emotions in physicians, including fear, anger, hurt, and helplessness. But litigation experts stress that after a filing, physicians must rein in their feelings and focus on immediate next steps – crucial actions that can significantly impact the suit and its outcome.

"Doctors have two reactions to getting sued – either they’re very sad or they’re very angry," said Steven Fitzer, a medical liability defense attorney at Fitzer, Leighton & Fitzer, P.S., in Tacoma, Wash., and former chair of the Washington State Bar Association Litigation Section. "Relaxing and composing yourself are important because a lawsuit is a marathon – not a sprint."

American Medical Association data show 60% of physicians will be sued by the time they reach 55 years of age. The average span of a medical malpractice claim from start to close is generally about 2.5 years, although many suits progress longer. While most medical liability claims do not end in trial, defense attorneys say knowing how to respond to a lawsuit can raise doctors’ chances of a quicker, more ideal resolution.

First and foremost, physicians should notify their malpractice insurance carrier as soon as possible after lawsuit papers are served, said Matt Mitcham, senior vice president of claims for MagMutual Insurance Company, a medical liability insurer that operates in the Southeast. Employed physicians should immediately alert their risk management department.

"All suits have a limited time for providing a response, and there are severe consequences for not meeting these deadlines," Mr. Mitcham said. "In addition, physicians need to provide their defense team with as much time as possible to prepare a response."

Doctors should resist the desire to contact patients or their families in an attempt to work out the situation themselves, adds Mr. Fitzer, who recently shared lawsuit preparation tips in two video playlists for The Doctors Company, a national medical malpractice insurer.

"Particularly with family practice physicians, they tend to have a long and strong bond with their patients and their patients’ families, and they think, ‘If I just call and ask what’s going on, we can just fix this all right here,’ " he said. "That never works. The patient or their lawyer will take whatever you say in or out of context and use it against you."

Another action to avoid after a lawsuit filing is making additions or changes to patient records, said Mr. Mitcham.

"The original records should never be altered under any circumstance," he said. "Today’s forensic specialists are experts in identifying changes, and by altering records, a physician can potentially turn a defensible case into one that is indefensible."

Securing an attorney that doctors trust and with whom they can aptly communicate is also essential, said Michael F. Ball, a medical liability defense attorney and partner at McCormick Barstow, LLP, in Fresno, Calif. Most doctors may not realize they can typically choose from a panel of attorneys used by their insurer, he said. Physicians can also ask to view the attorney panel and conduct their own research before requesting a specific lawyer.

Mr. Ball counsels his clients to focus only on the task at hand during each stage of a lawsuit, rather than worry about future phases or a possible trial. For example, during the deposition stage, physicians should prepare by understanding the deposition’s purpose, reading through the record, and being clear on what questions may be asked. A deposition is a witness’s sworn, out-of-court testimony used to gather information as part of the discovery process.

"Some [physicians] don’t review the record as closely as they should," he said. "There’s no substitute for real preparation."

Additionally, depositions are a stage in which a physician’s emotions may come bubbling to the surface, notes Angela Dodge, Ph.D., founding partner of Dodge Consulting & Publications, LLP, a litigation consulting firm in the Seattle-Tacoma area.

"A doctor may go into a deposition feeling very angry and resentful because a patient they believe they gave good care to is now suing," said Ms. Dodge, author of the book "When Good Doctors Get Sued: A Practical Guide for Physicians Involved in Malpractice Lawsuits, and Winning at Jury Selection." "We counsel them on the importance of setting that aside because it could interfere with" their success.

Negative emotions by doctors may be interpreted by plaintiffs’ attorneys as guilt or defensiveness and used to fuel their claims, she said. Doctors should also focus only on the questions being asked during a deposition and not offer up any further or additional information. For instance, in a recent case, a doctor was asked about a specific part of his education. In response, the physician provided unnecessary information about his entire medical education, including his experience operating on pigs, how pig anatomy is relevant to human medicine, and other needless details, Ms. Dodge said.

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