By: Nadine Nasser Donovan, Esq.
This blog post provides a succinct checklist of what a medical defendant should do when sued or put on notice of a medical malpractice claim. This information has been adapted from Medical Malpractice Survival Training for Physicians, available from SEAK here as part of a DVD set.
You’ve Been Sued. Now What?
It is crucially important that a physician properly respond when she first learns of a malpractice claim against her. A proper response is an important part of successfully defending the claim. Conversely, an ill-advised response can make the defense of the physician more challenging or difficult. The following checklist addresses what to do when first put on notice of a medical malpractice claim.
What A Medical Defendant Should Do When Put On Notice Of A Medical Malpractice Claim
- Determine Your Professional Liability Insurance Carrier
- Identify both primary and excess professional insurance carriers
- Determine if you have Tail Coverage for an expired Claims Made Policy.
- Contact all professional liability insurance carriers to advise them of claim. Do so even if you are unsure whether the insurance coverage applies.
- In cases with multiple defendants, ask the insurance company if they intend to assign you your own defense counsel. If not, it may be prudent to specifically request that you get assigned your own defense counsel
- Advise Employer’s Risk Manager or Human Resources Contact
- Your employer could have an extra layer of insurance coverage
- Make Sure The Patient Record Is Secure
- Only applies to patient record within your control.
- Do not go seek out patient records in hospital or other settings.
- Request and Review Your Malpractice Policy To Determine:
- If the claims being made against you are covered by your malpractice policy (see #7, below).
- If you have input in the choice of the claims adjuster assigned to your case.
- If you have a say in the choice of defense attorney assigned to represent you.
- If your approval is necessary for settlement of claims against you.
- Policy limits that apply to this claim.
- Secure Meeting With Claims Adjuster and Defense Attorney. In preparation for that meeting:
- Review your claimed involvement in the patient’s care
- Consider ways to demonstrate that what you did met the standard of care
- Prepare a list of questions and concerns you have about the case.
- Areas to query counsel:
- Jurisdiction of lawsuit (state or federal court)
- Applicable standard of care
- Applicable contributory negligence laws
- Take The Claim Seriously, No Matter How Seemingly Frivolous
- You must have the mindset that any medical malpractice claim is a potential threat to your medical license and livelihood.
- No matter how frivolous the case seems, make sure that you treat each such claim with the same level of seriousness, especially if the injury claimed is significant.
- Consider Hiring Personal Counsel
- Physicians should be aware that not all patient claims are covered by malpractice insurance. Examples are claims for punitive damages, sexual misconduct. In those circumstances, a physician should hire personal counsel to represent the physician’s personal interests in the lawsuit.
- Even if all claims are covered by malpractice insurance, a wise physician may still choose to hire personal counsel to monitor the lawsuit and ensure that her interests are being protected. This usually will not be expensive.
- Keep An Open Mind About The Outcome of The Claim
- Do not let your indignation or anger at being sued give you an inflexible posture in the case. Some cases inevitably will be settled, while others go to trial or may be dropped by the plaintiff. It is difficult to make that prediction at the outset of a case. A defendant physician is best advised to be prepared for all possible outcomes in a case, including settlement.
About the Author
Nadine Nasser Donovan, Esq. is a consultant/trainer for SEAK, Inc. She spent 18 years in the defense of medical professionals in medical malpractice actions and before medical licensing boards. She is a Legal Writing Instructor at Boston University School of Law, and a former Adjunct Professor at New England Law/Boston, where she taught in the areas of medical malpractice and hospital law. She can be reached at firstname.lastname@example.org, or (617) 791-4282.