While no doctor wants to think about the prospect of being sued, the reality is that many will be, and that being prepared for the process can offer real peace of mind. 42% of Physicians have faced a medical malpractice lawsuit over the course of their careers; likewise, 90% of general surgeons over the age of 55 have experienced a lawsuit.
On the other hand, it is comforting to remember a few other statistics: “Fewer than 8% of medical malpractice cases ever reach a jury. About two thirds of claims are dropped, dismissed, or withdrawn, while about 27% are settled. Physicians prevail in 80%-90% of cases that reach the trial stage.”
So, with those numbers in mind, here is some information that will help you navigate any lawsuit you ever find yourself facing.
What You Can Do, Even Before You Are Sued
First things first: as soon as you have any suspicion that a patient may be considering filing a lawsuit, contact your malpractice coverage provider. Don’t wait. They are your allies in this process and the sooner they are aware of a potential developing situation, the sooner they can come to your assistance. In those initial phases where you think a patient is considering a medical malpractice lawsuit, remember that it is expensive for a plaintiff’s attorney to do so. They often have to expend considerable resources upfront to prepare for and investigate the merits of a potential suit. Don’t make it easy for them. Never talk to a patient’s attorney without the advice and assistance of a representative from your carrier. Don’t speak “informally” or “off the record” with a plaintiff’s attorney.
In summary, before a suit even begins, there are two things for you to do:
- Contact your insurer; and…
- Avoid speaking with a plaintiff’s attorney.
If a Medical Malpractice Lawsuit Goes Forward
Unfortunately, following the above advice doesn’t guarantee avoiding a lawsuit. So, if it happens and papers are served, don’t panic. Trust the attorneys provided by your insurance carrier. This is what they do, and they are here to shepherd you through this—admittedly nerve-wracking—experience. When the suit first begins, assemble all of your records pertaining to the client, most specifically the incident in question. Never, ever tamper with the records. That means don’t “complete” them, don’t “supplement” them, don’t “correct” them, etc… nothing. Doing so is likely to be discovered by the plaintiff’s attorney and it will go directly to your credibility and integrity. While you begin to assemble your records, your attorneys will be diligently working to try to get your case dismissed. Remember the statistic above about the number of cases that are dropped, dismissed or settled out of court? This is how that happens. Your defense team will investigate every avenue possible for getting the case dropped. They will look into the plaintiff’s past: prior lawsuits, medical history, legal history, etc. They may even utilize surveillance or investigative tactics if fraud is suspected. In addition to questions about the plaintiff’s records, history, and reliability, your attorneys will also consider legal routes for dismissal. These include statute of limitations questions, precedent, and potential failure to specify a recognized claim of malpractice. In other words, they will try to convince the court that the plaintiff does not have a credible case that is worth taking forward to trial.
Discovery Including Interrogatories
However, if this initial attempt is unsuccessful, then the case will proceed to the next phase: discovery including interrogatories. These are the fancy legal terms that basically mean trading documents and asking questions. Both sides in the case will request information from one another (documents, medical records, histories, etc.) and after some amount of wrangling they will agree to give one another the documents that they settle on. At the same time, both sides will send interrogatories to one another. These are sets of written questions that put certain facts on the record. For instance, your attorney would likely send the plaintiff’s attorney a set of question detailing the patient’s health history and status before and after the incident in question. Likewise, the plaintiff’s attorney would likely send your attorney a series of questions detailing your medical history, expertise, training, experience, etc. This work is mostly handled by your attorney, but what you can do to help is:
- Do what you can to get your attorneys any documents or records they request in as complete and timely a fashion as possible, and…
- Work with your attorney to provide accurate, honest, and appropriate answers to interrogatories.
The next phase in the pre-trial development of a case is depositions. This can be one of the first really daunting elements for a physician, much less anyone who has never been previously deposed. A deposition is sort of like a pre-trial run at testifying. It is a chance for the attorneys to question you, as well as other witnesses and experts, in preparation for the trial. Depositions help attorneys determine their strategies, find weak points in testimony, and develop a plan for the trial. Depositions can therefore be stressful. You need to be prepared for adversarial, possibly even aggressive, treatment by the plaintiff’s attorney. Your attorney will step in if things get to out of hand or if he/she feels that you are being bullied or becoming distraught, but it is not uncommon to feel pressured or harangued by an attorney in a deposition and to leave feeling exhausted. The plaintiff’s attorney is going to ask you a lot of questions. He is likely to try to get under your skin to make you nervous so that you say something without thinking or that you don’t mean, or agree with a leading question hastily, or even lose your temper—a fact which he can then use to attempt to show that you don’t deal well with stress and behave erratically under pressure.
If all of that sounds scary, it is. But, there are a lot of things you can do to increase your odds of performing well in a deposition. First, prepare well. Review the records of the case thoroughly, but do so in consultation with your attorneys. They will likely want to guide you in what you review most thoroughly. Second, attend the depositions of the plaintiff and any expert witnesses. This will give you information and it might make them hesitant to exaggerate or be dishonest. Third, don’t guess—ever. If you don’t remember, say so. If you need to consult the record, say so. If you are not sure you are clear what the attorney is asking, say so—ask for clarification. It is never in your interest to guess at what the attorney is asking or what the answer is. At best you might guess right, at worst you may say something that is incorrect, contradicts your earlier testimony, or goes beyond what you needed to say.
Which leads into the fourth bit of advice: don’t give long, extensive, or thorough answers. Remember, this is an adversarial process. The attorney is playing Gotcha. Give honest, correct answers to the best of your ability, but don’t say more than what is necessary to provide a technically sufficient answer. Along the same lines, don’t answer overly general questions. Don’t agree to “wouldn’t you agree… ?” type questions unless you are sure you fully agree. If a question is overly broad, ask for clarification or specificity. Lastly, and perhaps most importantly, stay calm. Do not let the attorney get under your skin. Do not get nervous. Remain in control. Don’t lose your temper, and while not giving more than is necessary to answer the question try not to appear brash, arrogant, or contemptuous. Remain calm, answer the questions succinctly, and you will be fine.
In addition to depositions and discovery, both sides will be seeking expert witnesses. The reality is that both sides will try to get expert witnesses that uphold their take on questions like compliance with accepted practice in the field, competency, etc. You need to trust your attorneys to get the best witnesses available and to do what they are paid to do in the trial in order to show your witnesses as more trustworthy and correct than your opponent’s.
Medical Malpractice Lawsuit… Trial or Settlement?
When all this is done, the question becomes do we fight or do we settle? Your attorney, in consultation with a review board will come to you with a suggestion. On the one hand, physicians win the vast majority of cases that go to trial. On the other hand, you have to consider that that is because they have attorneys that know when to go to trial and when to settle. While you may have the option to refuse a settlement recommended by your team, you need to consider that the average payout on a trial that goes against a physician is substantially more than the average payout on a settlement. Further, there may be provisions in your contract that limit the amount your insurer will pay if a settlement is offered and refused. Nevertheless, if the trial does go forward either at your counsel’s recommendation or at your behest here is what you can expect.
First of all, time; a malpractice suit can take easily upwards of four years from being served papers to actually going to trial. The trial itself will likely last only a few days, with the jury deliberation taking a few hours to a few days, but the process of getting there can seem interminable. One of the dangers of this long time-frame hinted at above is the length of time between giving your deposition and testifying at trial. It may be years; nevertheless it is vital that you not contradict your prior testimony. Work with your attorneys, and follow their advice to the letter in preparing for this. Testifying is one of the most crucial aspects of your case that you have direct control over.
Speaking of testifying, there are some differences between how you should go about testifying at trial and the way you testified in your deposition. You should still not allow yourself to be manipulated by leading questions, and you should still be prepared for the attorney to potentially be combative and interrupt you. However, you should not limit yourself to the sort of concise, technically sufficient answers you offered in your deposition. Here you are speaking to the jury, and you want them to understand what you are saying and to sense you expertise and competence. Before, you were speaking to a professional lawyer who already understands the issues, and was simply trying to get you to go on record with as much information as he/she could get from you. So in trial testimony, you should look directly at the jury and answer with complete answers as if you were speaking to a patient. While you don’t want to contradict your deposition testimony, and you still shouldn’t answer beyond your knowledge, you do want to supplement that testimony with full answers that demonstrate that you know what you are talking about and can communicate it with ease.
So, what happens when it’s over? Well, the jury will deliberate and come back with a verdict. If they find in your favor, you pay nothing. There are, of course, still costs associated with the whole legal process but your insurer should cover those. However, if the jury finds against you their finding will take the form of some combination of punitive, economic, and noneconomic damages. Punitive damages are rare and are assessed for serious negligence or malicious behavior (e.g. drug or alcohol impairment). Economic damages are compensation for lost income or assets, while noneconomic damages are compensation for intangible harms such as pain and suffering, mental anguish, loss of function, etc.
However, even at this point either side can appeal the decision, first to the trial judge who can overturn or modify the jury’s decision or even call for a new trial in some circumstances. But if the trial judge upholds the jury’s verdict then the decision can be appealed to the appellate court. Further, while it is possible for the award granted to exceed the limits of coverage for the physician, it is fairly unusual, and there is some incentive on the plaintiff’s part to accept an agreement that keeps the settlement within the physician’s limits of coverage due to the fact that the appeals process could potentially delay the payment of any awards to his client for years to come.
And, while this is the worst case scenario, keep in mind that it is the reality in only 10-20% of the less than 8% of medical malpractice cases that go to trial and that even in this worst possible outcome the likelihood is that your insurer will cover all that you owe. All of that adds up to a pretty strong case for making sure that you have a great malpractice insurer, which means partnering with a trusted broker to get you the coverage you need from a company that has a strong reputation and a history of favorable outcomes for their clients.