How to Survive A Malpractice Suit

By Paul Weber, JD

[Review of Ophthalmology, July 1997]

Unfortunately, chances are that at some point in your career you will be sued for malpractice. It is estimated that in a 35-year period, 95 percent of all ophthalmologists will be sued. In fact, during that time, the average ophthalmologist can expect 2.8 lawsuits, according to figures collected by the Ophthalmic Mutual Insurance Company. Approximately 54 percent will experience three or more claims in that time. Each year, you have an 8 percent chance of being sued. What’s more, a little more than half of all ophthalmologists will “lose” a suit in their lifetime; that is, their insurers and/or they will have to make at least one indemnity payment.

Lawsuits happen to all types of ophthalmologists – department chairmen, academics, specialists, the biggest names in the field. So be prepared when and if it happens to you. Be aware that there are things you can do to increase your chances of prevailing, and moreover, be aware that the vast majority of lawsuits and claims against ophthalmologists can be and are resolved without need of an indemnity payment.

In this article, I will explain a few ways of improving the outcome of a malpractice suit. I would suggest that, after reading it, you stash it away in a drawer for use when that rainy day arrives.

Your First Indication

Your first notice that you are going to be sued may come from any number of different directions. You may receive a request for records from an attorney representing a patient who had an unexpected complication during surgery. A patient may come right out and tell you. Or, the plaintiff’s attorney may send you a harsh, strongly worded letter. It will say that you acted in complete negligence and that the plaintiff’s attorney has experts who will testify under oath that you mistreated this patient in more ways than you thought possible. But toward the end, the letter may offer you a way out. A lawsuit can be avoided, it will say, if you contact the plaintiff’s attorney immediately and begin negotiating a cash settlement.

Don’t do it. Remember that anything you say to the plaintiff’s attorney can and probably will be used against you in the case. Instead of calling the patient’s attorney or doing anything else the letter suggests, call your malpractice insurer at once. Your insurer will assign you an attorney experienced in defending malpractice claims.

Do not contact the patient. Many physicians make the mistake of thinking they can talk the patient out of the claim. If the patient has gone to the trouble of hiring an attorney, it’s probably too late for discussion. It may be a hard notion to accept, but this patient whom you’ve been trying to help and whom you may have known for years has now become your adversary. Again, anything you say to the patient can be used against you.

Believe it or not, some patients will ask that you continue to treat them even after a malpractice suit has been initiated. With your defense attorney, carefully weigh the pros and cons of continuing to treat a patient who has sued you or who has threatened to sue you. Continuing to treat the patient may be a sign of good will on the part of the ophthalmologist. However, it may be difficult to treat someone who has alleged that you caused him or her harm and is now your legal adversary.

Personally, I believe continued treatment of the patient opens the door for more trouble. I suggest you calmly and politely inform the patient that due to the lawsuit it’s best to continue his or her treatment elsewhere. Give the patient several recommendations. If the ophthalmologists contact you, do not discuss any aspect of the legal proceedings with them. Restrict your discussion to the patient’s medical facts.

To initiate the legal process, the plaintiff must serve you with a Summons and Complaint. The service of these legal papers can be accomplished by a number of methods. Any documents received by you, your office staff, or at your residence are extremely important. Such documents should be preserved, and legible copies should be forwarded immediately to your malpractice insurer.

A few physicians make the fatal mistake of ignoring a Summons and Complaint, putting it in a desk, not mentioning it to anyone, and hoping the problem goes away. This is the worst thing you can do. If you do not respond to the complaint, the courts can and will make a default judgment against you regarding your liability and indemnity payment. This course of action also jeopardizes the coverage with your malpractice carrier, since most policies state you must notify your carrier after you are aware of a claim or lawsuit.

Before you dig into the reference books to justify your actions, get your attorney’s approval. That way, your research becomes cloaked under the attorney-client privilege. If you turn up something that might be used to suggest you committed negligence, you won’t have to divulge it to the opposition.

Let the Record Stand

Perhaps the most important “don’t” is this: Absolutely never under any circumstances make even the slightest change to a patient’s medical records if you have reason to suspect a claim or lawsuit might be filed against you. I can’t stress this point enough. Your intentions may be good – perhaps you simply wish to add details you neglected to add when you saw the patient. But don’t do it. Copies of these records are often made for insurance purposes. If these original copies turn up in the hands of the plaintiff’s attorneys, your case is all but sunk. It’s not uncommon for completely blameless physicians to end up with unfavorable outcomes in malpractice suits solely because they altered medical records.

One such case involved a patient scheduled for cataract surgery. The patient suffered a perforated globe during administration of a retrobulbar block by the anesthesiologist. When the ophthalmologist found out, he canceled the surgery. Because the ophthalmologist did nothing wrong, the defense attorney saw the case as very defensible. However, when it came to light that the MD had constructed a second set of clinical records after the suit had been filed, the case was resolved with a large indemnity payment.

Working with Your Attorney

The attorney-client relationship is very much like the patient-physician relationship in that it’s a two-way street. To successfully meet the challenge of a malpractice claim, you must work closely with your attorney. Why? Because you were the only expert who was present when the alleged malpractice took place. This gives your case a significant advantage, but it also calls for more work on your part. A few guidelines:

Complete honesty is very important. Make all the facts of the case available to your attorney no matter how damaging you think they may be. Even though the defense counsel is appointed by your insurance carrier, he or she is your attorney, not an attorney for the insurance carrier, and so owes a fiduciary duty to you. It is the attorney’s legal responsibility to act primarily for your benefit.

It’s also a good idea to sit down and teach your attorney the basics behind the procedure you performed on the plaintiff. Malpractice attorneys may be familiar with ophthalmology, but they are not experts, and you may have information that can help your case. Make time for your attorney. Listen carefully to his or her inquiries and advice, and incorporate those observations into your decision-making process.

Don’t take your anger out on your attorney. Often, frustrated physicians lash out at their own lawyer, weakening an important partnership. Your case is only as strong as your legal team. That includes both you and your attorney.

Ask to be placed on the “copy list” of both your attorney and insurance carrier so that you can see copies of all documents pertaining to your case. When you confer with your attorney, he or she will take notes, and you probably will too. These notes, plus other court documents and correspondence, make up what lawyers call “work product.” Do not put your work product in the same folder as the plaintiff’s medical records. Keep it in a separate folder in a safe place at your office. This way, when you bring the plaintiff’s medical records into the court or deposition room, your work product won’t be with you. There may be documents in the work product your attorney won’t want entered into evidence, and bringing them into court makes them available to the opposing counsel.

Provide your attorney with names of experts you think may help your case, but don’t contact these experts yourself. To avoid the appearance of bias, limit your contact with your experts as much as possible. Avoid speaking with them in the deposition room, or skip their depositions altogether.

However, join your attorney at depositions where experts will be testifying against you. This will help you better understand the case against you, and develop an effective rebuttal. You may also be able to explain medical facts to your attorney. The opposing experts may feel uncomfortable in your presence and may be reluctant to testify about vague or disputed facts.

Deposition Dos and Don’ts

A deposition is oral testimony given under oath but outside the court. The deposition process is a critical part of discovery; it provides the best opportunity to develop the factual framework underlying the case and the contentions and the legal issues to be confronted.

Here are some tips on how to give the best deposition possible:

With your defense counsel, take time to prepare. You should be preparing for your deposition weeks or months in advance. Don’t leave anything until the last minute.
Take your time responding. Wait about five full seconds before answering a question. This gives you time to think about your answer and it gives your attorney time to formulate objections. Realize you’re not simply speaking, but dictating a very permanent document.
Don’t educate the examiner. It may be obvious to you that the examiner has no idea what he or she is talking about. Don’t try to help. Just answer the question as it is put to you. If you don’t understand the question, say so. But don’t say why.
Beware of questions containing double negatives. This is an age-old trick attorneys use to get you to answer questions the way they want.
Don’t be pressed into answering questions when you don’t know the answers. Often, the examiner will make it appear that only a fool wouldn’t know the answer to a question. Don’t allow this technique to seduce you into guessing at questions. Also, don’t add to your answers once you are finished. Your examiner may raise his or her eyebrows or make a “continue on” hand gesture. Simply sit quietly if you have nothing more to say.
Don’t explain the reasoning behind your answers. If you remember a date because that’s the day you picked up dry cleaning for your spouse, don’t say so – just recount the date.
Never qualify your testimony by starting sentences with “in all candor,” or “honestly,” or saying things like “I’m doing the best that I can.”
Don’t reveal your feelings unless specifically asked. Never say something like: “I was feeling depressed that day,” or “I was in a very good mood that morning.”
Don’t mention documents unless asked. If the examiner asks you a question and you don’t know the answer, but you know the answer exists on a document, don’t mention it. Simply say that you don’t recall. Do not produce documents if asked. Requests for documents should be made to your attorney.
Watch every word you say from the moment you arrive in the deposition room. There’s no such thing as “off the record.” Remarks you make even before you are sworn in may come back to haunt you. If you need to tell your attorney something important, leave the room and go to a private place.
If you’re hit with an important insight or memory during questioning, don’t blurt it out. Wait and discuss it with your attorney when the examiner is through.
Don’t expect a perfect testimony. Depositions are not winner-take-all affairs. You’ll be forced to answer questions that hurt your case. You may even be caught in inconsistencies. Don’t fall to pieces. You’ll get a chance to state your side of the story when your attorney questions you.

You Are Your Own Best Witness

There’s a legal maxim that says: “Lawyers do not win or lose malpractice claims; physicians do.” There’s some truth to this saying. You were the only expert there at the time the patient was treated. You can testify to aspects of the case that no one else on earth can.

For example, in one case, a defendant ophthalmologist gave convincing testimony as to the position and density of the plaintiff’s cataract prior to surgery. The opposition’s experts had never seen the cataract and were unable to rebut his testimony. His was the only credible testimony as to the pre-operative condition of the eye. Remember, this is very often the case. In most cases, the opposition’s experts have never laid eyes on the plaintiff.

Your Emotional State

A claim is bound to cause some emotional and mental strain. In fact, this condition has been documented and dubbed “the malpractice stress syndrome.”¹ It can result in irritability, insomnia, anorexia, difficulty in concentration, decreased self-confidence and decreased libido. Often a physician believes the claim is a reflection on his or her ability to practice medicine. This is most often not the case at all. In fact, most malpractice suits have very little merit.

I believe surgeons’ anxiety results from the basic differences between medicine and law. In medicine, physicians learn from books and from experts who point out mistakes. Everyone works toward one goal: better treatment for patients. Law, on the other hand, is based on confrontation and competition. The goal of bringing a malpractice case is not to find the truth about what happened in the OR. The goal is to win a judgment for the plaintiff. When you see a procession of expert witnesses denouncing your care in deposition, it helps to remember this concept. It’s all part of the legal process.

If possible, it is probably best to lighten your patient load during particularly important times during litigation, such as depositions and court appearances. This will give you more time to deal with legal matters and also to relax and spend time with friends and family. Talk about your feelings with those close to you, but not about the facts of the case. If you do, those people may be called to testify. If you truly feel you need to speak to a colleague or a family member about the facts of the case, do it with your lawyer present. That way the communication is cloaked in attorney client privilege.

When you’re feeling especially anxious, console yourself with the knowledge that a minority of claims end in an indemnity payment, and fewer still go to trial. According to statistics from the Physician Insurers Association of America (PIAA), 30 percent of claims against ophthalmologists result in indemnity payments and only 5 percent of those payments result from a trial.

Settlement or Trial?

Deciding whether to settle the case or go on to trial depends in large part on the specifics of the case. In general, however, you should consider the advice of your counsel, the information that has been developed during the discovery, and the analysis of retained experts. The decision to settle is usually the result of a consensus achieved between you, your counsel and your malpractice insurer. Many malpractice insurers have a policy of not settling a claim simply to avoid litigation costs. However, a timely resolution can be the best course. The vast majority of cases are settled before trial.

Before agreeing to settle, all physicians should know that settlements are no longer private affairs. All settlements, even if they are very small, must be reported to the National Practitioner Data Bank, an organization set up by the federal government four or five years ago. The organization then makes the information available to hospitals and other organizations that are required to check on the records of individual physicians.

If your case should go to trial, be aware that your full participation is necessary. If you choose not to be present during the trial, it could be prejudicial to your case; the judge and/or jury may see your absence as a lack of interest.

Malpractice claims are a fact of medicine you will most likely have to confront at some point. Getting sued doesn’t mean you’re a bad ophthalmologist. But it does mean you’ll need to take the time and effort to face this challenge head-on. If you have faith in yourself, avoid panic, work closely with your attorney and concentrate on your deposition, chances are you’ll prevail.