Emotionally supporting physicians sued for malpractice

A physician or nurse who receives a Summons and Complaint regarding a medical malpractice suit also receives pointers about whom to talk to, what to say, what not to say, and whom not to talk to. Despite some emphatic precautions, the appropriate advice to those malpractice defendants is not strictly “shut up and lawyer up.”

To help defendant clinicians cope, the answer to “Who can I talk to about a malpractice claim against me?” must be split between a) the details of the event at the center of the allegation, i.e., the patient, other providers, clinical decisions; and b) how being sued makes you feel, affects your ability to concentrate, or impacts the way you now practice medicine.

Case specifics

From a legal standpoint, physicians, nurses, and others named in a malpractice claim or lawsuit are advised to limit conversation about case details to settings with either peer review protection or defense team privileges (the latter comprising your risk manager, malpractice insurance representative, and the lawyers assigned to your case). Discussing case details with practice partners, colleagues, or other clinicians named in the same case, puts you—and those you spoke with—at risk of having to share such conversations with the plaintiff’s attorney. And never try to “set the record straight” by contacting the plaintiff’s attorney directly.

Emotional impact

Discussions with family, friends, colleagues or professional counselors, about the emotional and professional impact of being sued (minus any case specifics) are inconsequential to the plaintiff and, by and large, seen as a healthy tactic in reducing the stress of the malpractice case from your subsequent day-to-day activities. When the case is weighing on your mind, relieving some of that burden will likely benefit you, your family, and your patients. Just don’t share the details.

Sharing the lessons

Once a malpractice case has been resolved, many sued caregivers see value in publicly sharing their experience with physician and nurse colleagues. Those whose cases were resolved outside the courtroom seek an opportunity to tell their side of the story. Others want to demystify the litigation experience for their peers, and some just want to use their personal experience to reinforce key tenets of patient safety. Education programs that feature such personal accounts are well received by empathetic clinicians, often with many questions to help them understand how they should respond, should they ever be in their colleague’s shoes. CRICO has developed thoughtful answers to many of these questions, including:

  • What happens if I ignore a Summons and Complaint?
  • What should I say to a patient who is suing me?
  • Why do some cases settle before trial?

For a defendant in an active malpractice case, having the right advice at the right time can make a significant difference in their lives beyond the case. And that’s worth talking about.

 

Jock Hoffman is the Patient Safety Education Program Director for CRICO, the malpractice insurance provider for physicians and hospitals affiliated with Harvard Medical School.

 

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  • http://www.proassetprotection.com IKE DEVJI, J.D.

    Great Article and much needed info on responding to and coping with a traumatic event like a malpractice lawsuit, an unfortunate reality that all doctors will statistically face at least once.

    As an attorney that deals with 1000′s of doctors and their personal Asset Protection planning I can tell you that those medical professionals who have also received good counsel on how to prepare their lives, families and assets for such stress tend to cope much better and survive such attacks more often than those who don’t.

    These issues must be addressed proactively so that a lifetime of hard work is not jeopardized and lost in an instant. Those who are prepared for a fight also find that they less often required to be part of it and can limit their exposure to their insurance coverage and the non-financial costs covered so eloquently here.

    Ike Devji, J.D.

  • http://advocateyourself.org Cheryl Handy

    It is extraordinarily difficult to sue a physician. We should be discussing why more state legislatures don’t adopt “Sorry Works” legislation where the admission, apology, corrective active for the injured patient cannot be used in a law suit against the physician.

    Speaking as the daughter of an injured (now dead) patient and an injured patient myself, I receive absolutely no emotional support from the physicians/surgeons. In fact, I have surgeons doing their best to prevent me from obtaining medical care.

    I have no intention of suing a physician. But some physicians frankly deserve (at a minimum) some emotional distress.

  • George Hossfeld MD

    I am the author of a column in Emergency Medicine News called “You’ve Been Served”. I have written on this issue several times. While the “talk to no one” instructions may serve the attorney, and the legal system in general, it is directly contradictory to everything we know about stress management. Since being sued is usually the most stressful professional issue faced by most physicians, we are poorly served by any legal advice on the issue. I have inquired of many, many plaintiff attorneys, and I have yet to find one who was able to bring testimony from defendants family and friends into a case that was helpful for the plaintiff. Do you really think my brother in law is going to testify to anything other than “he said you slimy lawyers were trying to twist the facts and screw him for what was actually excellent care”? No, I advise physicians to share their frustrations with the same support group they would for any other very stressful situation, in the interest of their own sanity. Too many physicians suffer depression, divorce, substance abuse and yes, even suicide over this issue to advise otherwise.

  • insuremypractice@gmail.com

    My question to all of you is, how a doctor who does not carry med mal insurance copes with a suit? As an Insurance Agent, it pains me to see some doctors going without med mal insurance. They think they could away with it because according to them they are paying too much for their policy. My question to them, is it worth it?
    Paula Grove, RPLU

    • http://www.ama-assn.org/amednews/2011/01/31/gvsa0131.htm AustrianSchool

      No, I don’t think it is worth it to go sans malpractice insurance.

  • http://www.proassetprotection.com IKE DEVJI

    Puala, as an Asset Protection lawyer I get that question all the time, often from people who are implementing or considering implementing defensive legal planning.

    As a person who makes a living doing that planning I’ll be the first to tell you that it DOES NOT replace insurance, and insurance, despite the costs, is a necessary evil and a first line of defense in all cases. In my professional opinion any physician that practices “bare” is setting himself up for financial suicide.

    If for no other reason I like to see a big policy in place to catch the bullet on legal defense costs, which can easily be six figures with out experts. costs and other necessary elements of a well crafted and campaigned defense. My advice on insurance? Buy every dollar you can afford, assume it wont work and have a back-up plan that will limit the possibility of any recovery to the policy itself.

    Right now the average policy is about $1mm, and the average Med Mal award is 3 to 6 times that much, depending on whose numbers you use. That wipes out most doctors.

    Ike Devji, J.D.

    • George Hossfeld, MD

      How surprising that an attorney would suggest buying all the insurance you can ! That’s so you can pay an attorney a fortune to defend you from another attorney. I know of no hospital that will allow any doctor on staff to go without insurance since that makes the hospital a more inviting target to sue. While I wouldn’t advise going without insurance even if in the position where you could, it need be noted that the more insurance, the more prominent the target on one’s back !

      • http://www.proassetprotection.com Ike Devji

        Dr. Hossfeld:

        I respectfully disagree.

        If a doctor is sued SOMEONE is going to have to pay the defense costs. I’d prefer it be the Med Mal insurance company and not any of the thousands of doctors we protect.

        Monthly premiums are almost universally easier to pay that a minimum five figure retainer and rolling hourly defense bills that easily can cost several hundred thousand dollars.

        Defense attorneys dont work on credit. I will always tell our MD clients that I’d like to see them insure their way out of that defense cost liability, as opposed to having to pay it out of pocket at gunpoint as you seem to suggest.

        As for insurance making you a target, most doctors universally carry a $1MM per occurrence policy, yet they are routinely pursued beyond the policy if they are personally collectible. The way to make your self a smaller target is NOT to have less insurance, it’s to proactively make sure that you are not collectible for $1 beyond the limits of the policy. That’s what good guys in my business do for good buys in your business.

        I’m an Asset Protection only attorney, that means the kind of lawyers that sue sue doctors like you hate me because I keep them from collecting in a lawsuit, before the lawsuit even happens. Again, its a question of strategy and a simple business decsion made by med mal attorneys; there is no point in suing somone for more than the policy limits or carrier offer if there is nothing left to take from them.

        Ike Devji, J.D.

  • http://www.probusinessins.com Paula Grove, RPLU

    I like all of your input, and I have to say that I do not want to carry auto insurance because I feel it is too expensive. But, I am responsible, and I carry auto insurance, and I even have UM because here in Florida a lot of people only carry PIP (which is allow by law.) My husband has been rear-ended a couple of times by this kind of people (with only PIP). The stress is tremendous. I can’t imagine a doctor been served with a med mal suit, and he or she does not carry med mal.