Clearly, some situations increase a patient’s risk of a complication. However, even after the patient has been informed of this increased risk, she may later ask whether the event was preventable. A noncompliant patient or one who refuses a test or even hospitalization poses an additional risk. In such cases, it’s wise to have the patient sign a form indicating her refusal to comply with your recommendation. That signed form may thwart a later claim.
When a patient does inquire about an event, explain what happened in a concerned manner. Tell the truth and express empathy. Never avoid the patient, especially after care is transferred to another physician who may be managing the complication.
If the event occurred in a hospital, alert the hospital’s risk manager when you alert your insurance carrier. This will afford each the opportunity to collect and record facts early and to evaluate the case for merit. Make sure the facts surrounding the event are well documented. In fact, make it a habit to record all your notes as soon after an event as possible, since delayed dictation of operative notes and discharge summaries may become suspect. Never alter any record; there are many sophisticated methods available to uncover such deception.
Managing a claim
If a formal complaint or declaration is filed and a summons is served by the court, notify your insurance carrier at once—even if you have already alerted it to the possibility of a claim. Usually, an answer is required within 30 days. That answer should be prepared by the attorney you and your carrier agree will defend you.
Keep a copy of the summons for your records and forward the original to the carrier or the assigned attorney. Unless directed otherwise, any narrative summary that you prepare about your view of the facts should be delivered to the attorney rather than the insurance carrier, since most states protect attorney-client privilege. (In contrast, correspondence to the carrier may be discoverable.) Such summaries should not be filed with the patient’s records.
When patient-care records are requested, send copies and keep the originals, but make sure the request is properly authorized by the patient. Do not attempt to contact the patient to negotiate. Any communication you have with the patient after you’ve received the summons should be promptly recorded, preferably by dictation (since a physician’s scrawl is notoriously illegible).
Be forthright and truthful with your carrier and your attorney. An attorney’s worst nightmare is the later discovery of unanticipated facts. Keep calm. Don’t overreact or become hostile; a level-headed approach will help you prepare for a successful defense. If you feel you fell below the standard of care in regard to the event in question, now is the time to say so. Before you make that decision, however, review the literature that was current at the time the complication occurred. You will need to be up-to-date on such information if and when you are deposed. More importantly, you may find that the complication was not preventable in similar situations.
Working with your attorney. Choosing an attorney is like picking an investment counselor: You want to check the reputation of the law firm as well as the individual lawyer. Large firms use a team approach, but you will want to know who is to be the lead attorney.
In the beginning, try to evaluate your future relationship with this lawyer. Determine whether the attorney is experienced in this type of litigation. Is she or he willing to learn the medical facts? How accessible is the attorney when you call? You don’t have to be good friends with your lawyer, but you should feel comfortable communicating with one another.
Should you perceive unresolvable problems with the attorney-client relationship, bring them to the carrier’s attention immediately. It is in the interest of both you and the carrier that this relationship be solid. If this cannot be, the carrier should, with your approval, assign another attorney.
If you detect a special allegiance between your insurance carrier and the law firm, consider hiring a personal attorney, especially when codefendants are involved with whom there may be some dispute. Ask your personal attorney to evaluate state law as to whether a “common defense” may be fraught with peril for you and your personal assets.
The defendant’s responsibilities. Cooperate and participate. Make the time to work on your defense. This includes time for research so that you can provide literature relevant to the case. In the process, you may find the right defense expert for your circumstances.