“Doctor, there is an attorney on the phone to speak with you about…” Not too many things get your blood pressure up as quickly as that statement! Regardless of the reason for the call, the normal initial reaction is the fear.
The greatest protection against such fear is knowledge and planning.
The first thing you should know is that, according to a recent analysis by the Harvard School of Public Health, approximately 40% of the medical malpractice suits that are filed in the United States are groundless. Analysis of many cases indicated that there was no evidence of a medical error being committed or any injury suffered by the patient.
The second, and perhaps most important, factor to know is that many such calls are a fishing expedition by the lawyer. Presenting a friendly demeanor, the lawyer hopes to gain information that will be beneficial to the client. This is why you really don’t want to talk to the attorney without preparation and possibly counsel.
Having knowledge of those two facts, you now need to plan what to do when that attorney does call.
Normally your staff fields your calls and they should be instructed to take messages, as opposed to ringing the call through to you. If possible they should ascertain the reason for the call and, if applicable, the patient under question.
Once you receive the message, you should first review the patient’s chart to determine if there is any possibility of medical malpractice – or patient dissatisfaction. If you think there is any chance of a claim being made, contact your insurance agent or company immediately and follow their instructions.
If it is necessary to reply to the attorney, one of your staff should return the call and explain that any communication from an attorney must be in writing. This enables you to begin documentation and seek advice or counsel. This is particularly helpful if the call is about a colleague. The attorney may be seeking a free assessment of the case, looking for free expert testimony or even attempting to involve you in the lawsuit.
You are not required to provide any facts, documents or charts, except by the due process of law. If documents are subpoenaed or you must appear for a deposition, your attorney can shield you from immaterial or incriminating questions. Your attorney can also evaluate requests for charts or documents that may be unnecessary.
There is one critical mandate. Do not, under any circumstance, decide to rewrite, revise or clean up any chart entry or patient records. Regardless of how well meaning you might be, any alterations can come back to haunt you in a trial. Plus, many malpractice carriers will refuse to defend or pay claims for a physician who altered medical records.
Referring back to the opening analysis that 40% of claims are groundless, very few malpractice cases ever go to trial. Even a request for patient records does not guarantee that you are being sued. Most cases are dropped by the plaintiff or dismissed by a judge for lack of evidence. That is why you do not want to react from fear or anger and perhaps create further problems for yourself and your case.
Summarizing some of the key elements about what you should, or should not, do when an attorney calls.
- Contact your insurance carrier immediately when notified of a claim being filed against you.
- Require that all communication be in writing.
- Review your records on the patient in relation to the complaint, which you should also review carefully.
- Limit your communication about the case to your attorney.
- If you must talk to the opposing attorney, your attorney should be present.
The final point is that the possibility or actuality of a malpractice claim can create severe emotional distress for any medical provider. It is human nature to take such attacks personally. That’s why it is important to openly discuss the case, the ramifications and your feelings with a support person such as your spouse or partner. If need be, discuss it with a psychologist or psychiatrist. Alleviating your stress in this way will enable you to focus on the treatment of your current patients. Do not discuss the case with your colleagues. Simply explain that your attorney has advised you not to discuss the matter. The simple fact is that they might be drawn into the case or be called upon to testify as expert witnesses.