Megan Koenig, DO, MBA, MS New Physicians in Practice Committee Chair
We are pleased to welcome guest blogger Megan Koenig, Chair of ACOEP’s New Physicians in Practice Committee, as she provides tips on what to do if you ever find yourself faced with a lawsuit.
One of the most stressful moments in a physician’s life is the moment they are served with papers informing them of being named in a lawsuit.
Hopefully, you never find yourself in this situation, but as a physician early in your career, take this opportunity to gain a better understanding of this intimidating process.
1. Learn the terminology:
a. Case Review: Your hospital may tell you that they have flagged the case as being high risk due to a bad outcome. This usually means they are doing an internal case review and the patient themselves haven’t yet made a claim/lawsuit.
b. Attorney Letter: This is a simple request for medical records before any actual suit has been placed.
c. Legal Notice of Intent to Sue: This starts a process of investigation to gather all of the data and prepare to make an official complaint. Often this is done if they are approaching the end of the statute of limitations.
d. Summons and Complaint: The complaint has officially already been filed with the courts and the lawsuit process is underway.
2. Phone-a-friend
a. Once you are alerted of the case, your next call should be to your malpractice carrier to alert them of the details you know and to get them a copy of what you were served. Below are some important questions to clarify with:
i. Can you review the case in the EMR ?
ii. Who can you talk to about it (spouse, director)?
iii. What is the expected timeline?
iv. Who is your main point of contact from here on out…you want them on speed-dial for your own peace of mind?
v. Is an addendum to the EMR advisable? (Almost always they will tell you to not alter the medical record in any way as it will raise question of your credibility, but in rare instances your attorney may advise you to create an addendum)
b. Your second call should be to your risk management department (this may be 2 different people, one for your group and one for your hospital).
c. Your third call should be to your administrators (ie. Medical director).
3. Anatomy Of A Lawsuit:
a. An official complaint is filed in court by the patient (plaintiff), and either hand delivered to you or certified mail. You are to send this directly to your malpractice carrier (make a copy to keep yourself).
b. Representation assigned, once your malpractice carrier gets the official documentation and evaluates it, they will select your attorney. Often they will assign a single attorney to the entire case even when there might be multiple doctors involved, but if you feel that your interests are best served by individual representation then you must express your opinion to the insurance company
c. Your representation will file an answer on your behalf (defendant).
d. Period of discovery. Where the plaintiff’s representation will do most of their research and may request documents from you
e. Peer Review. Often your hospital will hold a peer review session to evaluate the process and quality measures involved in the specific case in the event there are system improvements that could be changed based on the bad outcome. In most states these meetings are protected and cannot be reviewed in court
f. Deposition. This is where you will be questioned in person. Your team will prepare you for this and there are some other resources below. This is a very strategic and intimidating interaction.
g. Expert witness selection. This is when our attorney may seek your input in selecting up to 3 medical experts that can help support your case.
h. Alternative dispute resolution (ADR). This is when you attempt to come to a resolution without going to court through the help of a court appointed mediator.
i. Voluntary Dismissal. This occurs when the plaintiff attorney realizes they don’t have a case against you
j. Settlement. This occurs when your carrier/hospital decides to settle on a price outside of court. This doesn’t necessarily mean you are found guilty; it can simply mean they have decided it would be cheaper to pay $X rather than to fight a long battle in court. Either way, this will go in your record.
k. Trial. If you cannot come to a resolution through ADR/settlement then it will go to trial
4. If You Settle Or Are Found Guilty:
a. The National Practitioner Data Bank (NPDB) is notified of the nature of the case and amount of settlement/loss
i. You can contest the wording of these statements if you don’t feel like they are accurate
b. In many states, if the settlement/loss is over a certain amount, the State Medical Board is also notified
i. If you have had a number of reports in a designated period you may be subject to a state investigation
c. Your insurance carrier will review internally whether they will continue to insure you after the expiration of your current policy
d. Your premiums will certainly go up.
e. When completing future applications you are obligated to disclose these cases
5. Key Things To Be Aware Of:
a. Do not run and hide! They will find you one way or another, believe me, so you might as well give your malpractice carrier’s team the most amount of heads up possible to help develop a case to better defend you. The longer you hide from it the less time you have to prepare!
b. DO NOT talk to your spouse, your colleagues, and definitely don’t reach out to the patient.
c. Do not alter the chart unless advised by your council to do so
d. Most medical cases are civil lawsuits, not criminal, so you should not worry about potential jail time
e. Rough timeline: In most states, a trial will be scheduled within about a year after filing the complaint (but can range from 6 months to 4 years).
6. How To Be Proactive:
a. Know the details of your malpractice coverage, ask for a copy of the policy, know who to call the moment it happens, know what your policy covers. You may not be covered if:
i. You are a medical director (ie. a compliant is filed against one of your doctors but they find you responsible for not having proper policies in place to guide them)
ii. The case revolves around assault and battery (ie. Restraints of a patient)
iii. You respond to a rapid response outside of the ER
iv. You performed an EMTALA violation
b. Know what your policy says about your settlement rights. Most insurance policies give you the right to consent or refuse to a settlement, but not all and there are circumstances where it gets complicated:
i. Independent groups are very common in EM, in which case you may have a different malpractice carrier than the hospital has. In these cases there is quite the conflict of interest, so know what kind of power you and your group has when it comes to settlements, does the hospital have to get your attorney’s approval prior to settling the case or can they do it without your involvement?
ii. Large management groups have been known to settle cases without the approval of the physician. Are there any clauses in your contract that either give/take away this right of yours?
iii. If you request to settle and your company forces you to take it to trial and the judgment exceeds the limits of your policy to where you would need to pay out of pocket, you can make a “bad faith action” against your carrier.
c. Know the rules in your state
i. Some states allow you to discuss with your supervisor and/or spouse, others don’t let you talk to anyone.
d. Have your eye on a personal medical malpractice attorney.
i. Your malpractice carrier will supply one to you, but in the event you do not feel you have fair representation (ie. Looking out for benefits of hospital/group over yours, disagreements on settlement, high likelihood of verdict in excess of your policy, etc)
7. Other Resources Available To You:
b. physicianlitigationstress.org
Disclosure: I am not an attorney, nor do I have any official legal training, the information compiled above is simply my opinion derived from the resources provided to you. Please seek legal council should you have further questions or concerns regarding the topics covered in this article.
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