After only four hours of sleep, thanks to an emergency call in the night from one of your patients, the alarm rings and you head for the kitchen to make some strong coffee. On the breakfast table is yesterday’s mail, and there it is: a letter from a law firm. You open the envelope and read the first sentence: “You are hereby notified that Mr. Smith, as Personal Representative of the Estate of Mrs. Smith, intends to initiate litigation for medical negligence against you …..”
You have just been notified that you are being sued for medical malpractice by a law firm you have never heard of, on behalf of a patient you treated like family. The letter outlines selected “facts” and “theories of negligence” that paint you as uncaring and clinically incompetent. You tell yourself, “this cannot be happening!” You feel like throwing something against the wall. You are not alone.
Ten years ago, as many as 20% of practicing physicians, surgeons, dentists and other healthcare providers were involved at some stage of a med-mal claim or lawsuit. Though that percentage has now been reduced as the frequency of filing lawsuits against healthcare professionals has decreased, knowing that bit of data does not help your current attitude toward the plaintiff (the person bringing the lawsuit on behalf of the patient) and their lawyer. You are angry. You are in denial. This is normal. Take a deep breath, exhale slowly, and survive.
The above method of receiving an unexpected formal complaint is only one way in which a medical malpractice lawsuit may be initiated. Other ways in which you may recognize the potential of a lawsuit are (a) having a discussion with a disgruntled patient, (b) receiving a letter from a “quality control” company asking for your written explanation of the clinical treatment you provided, or (c) receiving a letter from a government agency pertaining to a complaint made by your patient. While you should properly resolve perceived conflicts with your patients and fully comply with formal quality control issues and governmental investigations, you should always ask for advice from your medical malpractice insurance carrier’s risk management or claims departments before you formally respond to the questions posed. There is nothing wrong with asking for advice and by doing so you will not lose your claims free discount with your insurance carriers as this is not a “chargeable” claim. After all, this is what you are paying for! Otherwise, should you choose to go-it-alone, the answers you provide may come back to haunt you at your upcoming deposition. And, yes, there will be a deposition in your future.
Attached to the formal Complaint will be a series of questions labeled “Interrogatories.” Again, do not answer them on your own. Call your med-mal insurance carrier’s claims department, who will review the case and assign your representation to an experienced med-mal defense attorney. You now have become a member of a group you thought you would never join: your litigation management team. You are a key element of this team, but neither for your knowledge of the law nor for your experience in managing med-mal claims. You are not here to be the lawyer; rather, you are the scientist – and the team desperately needs your knowledge of the medicine in this case. It is your duty to educate them completely, yet in a fashion they will understand. A word such as “cardiomyopathy” is not in their daily vocabulary. Keep it simple. Be patient.
