The 10 Biggest Legal Mistakes Physicians Make When Confronted with a Bad Outcome

Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)

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Executive Summary

Regardless of the care given and the care taken by the attending physician, a bad outcome is sometimes obtained. This always comes as a shock to the patient and the patient’s family, and quite often as a shock to the physician. The physician must absolutely confront this situation immediately. By doing so, he or she can quite often prevent a lawsuit or a complaint to the state medical board.

 

Mistake 1        Failing to Maintain Contact with the Patient or the Patient’s Family

Physicians often fail to maintain contact with the patient or the patient’s family members after a bad outcome. This is a mistake: Physicians should immediately contact either the patient or the patient’s family, as the case may be, and they should be open, honest, and explain any problems. They should discuss the prognosis, if any, and any corrective measures needed. Also, they should suggest a consultation if applicable. Taking these steps indicates that the physician cares for the patient and for the patient’s family and that the physician is there to help them through this difficult situation. It is surprising how many times a good feeling toward a physician will avert a malpractice suit, and vice versa.

 

Action Step     Physicians should always maintain contact with the patient and the patient’s family members.

Mistake 2        Failing to Explain What Happened When Death Is the Result

If the result is a death, physicians may be reluctant to explain the cause. However, physicians should explain what happened, express their deep sorrow, send a sympathy card, and either visit the funeral home or go to the funeral if possible. Families invariably appreciate the physician showing care and sympathy, which are part of the trust relationship that has been built between the doctor and the patient and the patient’s family. Continuing that relationship is vitally important. Again, good bedside manner and family loyalty will sometimes be helpful in being able to completely avoid a malpractice action.

 

Action Step     Physicians should never forget to show care and support for the patient and his or her family.

 

Mistake 3        Criticizing Other Health Care Providers

Criticizing other health care providers is a mistake that will come back to haunt a physician in an immediate case or future cases. If criticism is necessary, physicians should depend on their lawyer or insurance carrier to handle this matter at the appropriate time. Quite often in complicated cases, physicians are inclined to say something to the effect that they wish they could have seen the patient earlier. Statements such as this could indicate to the patient or the patient’s family that some other doctor did not do a good job in the beginning and therefore is at fault. Such circumstances can create a totally good-faith effort on the part of the patient or the patient’s family to start looking for a malpractice case, when in fact there is absolutely no basis for doing so. Physicians must be very careful in their conversations at all times.

 

Action Step     Physicians should never criticize other providers.

 

Mistake 4        Failing to Maintain All Records in Their Original Form

For various reasons, physicians may sometimes be tempted to alter a medical record. They must, however, maintain all records in their original form without any changes whatsoever: no deletions and no additions. If something is drastically in error, physicians should make a separate memo concerning the error and then date and sign it. In a case that goes to litigation, an altered record is one of the most devastating things that can happen to a provider in the courthouse. The plaintiff’s lawyer will delight in pointing out to the jury that the physician is trying to hide something. Many cases have been lost because of this very factor, when in truth and in fact the alteration was made in total good faith.

 

Action Step     Physicians should never change original medical records. Errors can be corrected, but before doing so, physicians should always consider how the changes will be viewed in hindsight.

 

Mistake 5        Failing to Immediately Advise the Insurer About a Possible Claim

When physicians get a bad outcome, and it will happen at some time, they should immediately advise their insurance carrier if there is a possibility of a claim being made. The insurance carrier has qualified people to investigate the matter and will be in a position early on to potentially avoid any serious consequences. The sooner the matter is investigated the better; the situation is analogous to extinguishing a small blaze as opposed to a raging conflagration. Time will very well heal old wounds, but it also wipes out memories and details, so physicians should contact their carrier promptly.

 

Action Step     Physicians should always notify their insurance carrier of a potential claim so the investigation process can begin as soon as possible and before their memory fades.

 

Mistake 6        Failing to Find Out From the Insurer What Lawyer Will Be Assigned to the Case

Physicians may neglect to contact their insurance carrier about the attorney being assigned to their case. However, they should do so and then contact that lawyer immediately, followed by a face-to-face meeting. When speaking with their lawyer, physicians can rely on the attorney-client privilege to protect their conversations. The lawyer will need to know everything the physician can possibly say about the case, including any special factors and medical technology that he or she will be dealing with in defending the physician’s position. Physicians should seek to immediately establish a relationship with their attorney that will be beneficial to them until the matter is concluded.

 

Action Step     Physicians should find out as soon as possible who has been assigned as counsel in their case and then meet with and assist their attorney throughout the process.

 

Mistake 7        Believing the Lawyer Understands All Medical Factors Involved in the Case

Lawyers are not doctors. Lawyers depend on doctors to explain the medical matters with which they are confronted. Physicians can do their own medical research, which they can provide and explain to their lawyer. In doing so, physicians will have a much better lawyer than if they simply assume that he or she knows everything that they know about medicine. Physicians should meet with and explain the medical issues to their lawyers.

 

Action Step     Physicians should be sure to explain and discuss the medical and legal issues with their counsel.

 

Mistake 8        Failing to Ask the Lawyer to Explain the Legal Issues Involved

Physicians need to understand exactly what is going to happen in their case. They should ask their lawyer what they will be expected to do, as well as discuss time tables so that they will have a good idea as to what and when certain things will happen. Certain basic factors have to be proved and disproved in all cases, and physicians need to be aware of them. The lawyer needs to understand and explain to the physician the legal issues involved in the case so that they can work together as a team. Physicians should make certain their questions are answered. Just as in high school: There are no dumb questions.

 

Action Step     Physicians should be sure their lawyer explains and discusses with them the medical and legal issues involved in their case.

 

Mistake 9        Failing to Understand the Nonlegal and Nonmedical Factors Involved

Physicians need to discuss with their attorney a number of nonlegal and nonmedical matters that can affect their case, such as the court (e.g., federal or state) in which the case will be heard; who will be the judge; whether the physician or the physician’s lawyer knows the judge assigned to the case or has any personal ties to that judge; where the case will be tried (i.e., will the case be tried in the physician’s home county or in a place where he or she will be a stranger?); the type of people who may be on the jury; the possible verdict ranges and the amount of insurance the physician has to protect himself or herself; whether a settlement should be considered, and if so when; what are the possibilities of settling a case at mediation as opposed to trying the lawsuit; if the case is settled, whether the settlement will be reported to the National Practitioner Data Bank; and the effect, if any, such a report will have on the physician’s practice now and in the future. Physicians should discuss these matters with their attorney so that they know fully what their options are.

 

Action Step     Physicians should always discuss with counsel any trial, settlement, and judge-related issues.

 

Mistake 10      Discussing the Case With People Other Than One’s Attorney or Insurer

Physicians should not discuss their case with anyone other than their lawyer. In fact, the only one with whom physicians have any protection is their lawyer. The conversations between the physician and his or her lawyer are protected because of the attorney-client privilege. Their other conversations are not privileged, and a physician’s best friend could be called on to testify under the penalty of perjury. Physicians should be very careful during any conversations about their case: A person might overhear, and a physician may never know who that person knows, and should always assume that person will talk.

 

Action Step     Physicians should never under any circumstances discuss their case except in private with their counsel.

 

Conclusion

It would be almost impossible to anticipate every situation that could lead to a malpractice case being filed against a physicians. Avoiding these 10 mistakes, however, can dramatically reduce a physician’s chances of facing such a claim.

Written by:

Jack Q. Tidwell, Esq.

Peer reviewed by:

Blue Hyatt, Esq.

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