Legal Issues for the Gastroenterologist: Part II

In the previous issue of The New Gastroenterologist, we discussed statistics and the basis on which most gastroenterologists are sued as well as what you can do to minimize this risk. In this second article, we discuss steps to assist in your defense in the event you have been sued. The following suggestions are based on our experience as defense attorneys who practice in the arena of medical malpractice.

If you have been sued, it is imperative that you notify your insurer immediately, as this may be required under your policy for coverage. It is also best practice to notify the carrier and/or the hospital (if it occurred at the hospital) of any incident or serious event, bad outcome, or letters from lawyers representing the patients. This allows for early investigation and, in some cases, intervention.

Do not, under any circumstances, add or alter the plaintiff’s medical records. Although you have continued access to electronic medical records, accessing or altering these documents leaves an electronic trail. Attorneys are now frequently requesting an “audit trail” during discovery, which shows who and when someone accessed or altered relevant medical records. Additionally, it is likely that the plaintiff’s counsel has already obtained and reviewed records for their client. As such, counsel will notice any alterations and will require an explanation as to the same. If you did alter any medical records, it is important that you notify your attorney about the specifics of such.

You should not discuss anything about the case with anyone other than your spouse and attorney. This will prevent plaintiff’s counsel from deposing additional witnesses and limit the amount of people potentially forced to testify.

After you have secured an attorney, it is critical that you arrange a meeting to develop a positive relationship early in the litigation process. This is important for many reasons. A medical malpractice case can be a long and arduous process which requires that you be involved with your attorney during the course of the litigation. For the attorney-client relationship to be successful, it is imperative that you know and feel comfortable with your attorney and develop confidence and trust in her. Without this trust, it will be difficult for you to accept various decisions or suggestions that the attorney believes are in your best interest. Conversely, the attorney should get to know you and understand your background, as this will assist in your representation.

A good relationship with you will also aid your attorney in educating herself on medical concepts relating to your case. Remember, your attorney most likely has not attended medical school and many of the medical concepts will initially be new to her. By the time trial arrives, however, your attorney will be very familiar with the medical issues in your case. This learning process can be expedited with your assistance and research.

Finally, be sure to respond fully and honestly to questions from your attorney, regardless of whether you view it as harmful, irrelevant, or unimportant. Anything you tell your attorney is confidential and protected by privilege. Your attorney is your ally. It is her job to help you. Thus, it is essential that you respond fully and honestly to all questions posed by your attorney and disclose all possibly relevant information.
 

Your deposition

At some point during the lawsuit, the plaintiff’s attorney will take your deposition. The plaintiff’s attorney will strive to obtain concessions that establish the standard of care, breach of the standard, causation, and damages. Your deposition is not the time for you to provide explanations. It is the time for you to concisely answer specific questions posed by counsel without volunteering any additional information. Ultimately, trials build on what occurs during depositions. Preparation is key. Be open to advice or criticisms from your lawyer. Try to eliminate any quirks or habits that interfere with the substance of your testimony or perceived credibility. A deposition is not a casual conversation, nor is it a test of your memory. Limit your answers to personal knowledge; never guess or speculate. If you do not know the answer to a question, or do not remember something, it is perfectly acceptable for you to say so. Only answer questions that you understand. You are allowed to ask the plaintiff’s counsel to repeat or rephrase questions.

Once you have answered a question, stick to your answer if it is accurate. It is fine to change an answer, but do not change it simply because the plaintiff’s counsel is pushing you to do so. Aggressive interrogation by opposing counsel may occur. Never argue or quibble with the plaintiff’s lawyer; leave all arguing to your lawyer. A witness who is calm, courteous, and confident is more likely to appear credible. The plaintiff’s attorney may request that your deposition be videotaped. If this is the case, be mindful of your mannerisms, tone of voice, and appearance. The videotape may end up being played in front of a jury.

Finally, and most importantly, always tell the truth. Discuss any anticipated issues or concerns with your lawyer before your deposition.