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.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Executive Summary
Civil litigation, not involving professional liability claims, often requires the physician to step away from the comfort zone of medical issues and enter the unknown world of contract and nonmedical tort claims. Such claims have the potential of not only being financially ruinous, but also of consuming vast amounts of time and attorney’s fees. The risk, personally and professionally, to physicians who fail to understand the civil litigation process is immense.
Mistake 1 Delay in Contacting Counsel
All too often, physicians will attempt to resolve a business dispute on their own. While that might be appropriate for a relatively mundane manner, counsel should be contacted promptly whenever a dispute seems complex or significant sums are involved. A delay in contacting counsel can result in serious problems at a later stage of the dispute. Statements that a physician may make, orally or in writing, might come back to haunt him or her—a mistake that may have been avoided had counsel been retained promptly. Further, attorneys may be able to view the dispute more objectively and have a greater ability to resolve the matter amicably before tensions escalate. Significant legal expenses might be avoided if the attorney has the opportunity to resolve the matter at a very early stage.
Action Step When a disagreement arises, careful consideration should be given to involving counsel immediately.
Mistake 2 Making an Error in Selecting Counsel
As with the medical profession, attorneys have widely varying areas of expertise. The physician must make certain that the attorney selected to provide representation has competence and experience with the subject matter of the dispute. The physician must directly ask counsel what his or her experience has been in handling similar disputes.
Action Step Physicians should conduct “due diligence” regarding their counsel before engaging him or her.
Mistake 3 Failing to Know the Strengths and Weaknesses of Opposing Counsel
The physician must understand that there are, in addition to the parties, other players who will dictate developments in the litigation. First and foremost is the opposing attorney. A physician should direct his or her counsel to learn everything possible about the opponent. Has opposing counsel handled similar cases in the past? Does the attorney have a reputation for being reasonable or unduly litigious?
Action Step If the physician’s attorney is not already familiar with opposing counsel, the physician should instruct the attorney to make inquiry and to send the physician a report.
Mistake 4 Not Understanding the Role or Reputation of the Trial Judge
The trial judge will largely dictate the pace of the litigation and play a large role in determining the extent to which settlement discussions will occur. The physician must know whether the judge is experienced in dealing with business disputes. Further, it is important to know whether the judge will move the case expeditiously or if the matter will become one more example of the wheels of justice turning slowly. Finally, it is important to know if the attorney has prior experience with the judge, and whether that experience has been positive.
Action Step The physician should learn from his or her attorney all available information regarding the trial judge. That information will be a factor in many important decisions involving discovery, settlement, or proceeding to trial.
Mistake 5 Failing to Appreciate the Time and Expense of Litigation
Very early in the process, the physician should ask the attorney to prepare a projected litigation budget and timetable. How many depositions will need to be taken and over what period of time? What will the entire matter cost if it proceeds through trial? Obviously, the attorney’s budget can be no more than a good-faith estimate because part of the cost and timetable will be dictated by opposing counsel and the judge. Nevertheless, it is important for the physician to understand as soon as possible what the process is likely to entail. To help monitor the cost, the physician should request monthly, itemized bills.
Action Step The physician must not defer a candid discussion of the time and expense of litigation. Those issues will clearly play an important role in evaluating the merits of settlement.
Mistake 6 Failing to Appreciate that Settlement May Be the Right Choice
Physicians tend to approach business litigation as though it were a malpractice case. This mistake must be avoided. In commercial disputes, physical injuries are not at issue and the physician’s competence is not being challenged. No report to the National Practitioner Data Bank will result from a business dispute. More than 95% of business disputes are resolved amicably before trial, and there is typically immense pressure from the judge to settle commercial lawsuits. Indeed, many courts have mandatory alternative dispute resolution mechanisms, such as mediation, which are designed to resolve matters prior to trial. The physician must review with his or her attorney the risk of an adverse result and the cost of trial. The higher the risk or the cost, the greater the need to carefully evaluate settlement options. Only a very compelling business reason would warrant spending more money to try a case than to settle it.
Action Step The dynamics of business litigation are such that settlement discussions will almost always occur. The physician must evaluate the case from a business perspective, not an emotional one, and balance the factors of risk and cost.
Mistake 7 Failing to Monitor the Proceedings
Physicians are often so busy that it is difficult to pay careful attention to the progress of litigation. This mistake must be avoided. The physician should regularly communicate with the attorney to understand where the matter stands at any particular period of time. If the trial judge has requested that briefs be filed on any particular issue, the physician should obtain and review copies of them to understand the arguments being made.
Action Step Physicians should make time to know where the case stands and what the next step will be.
Mistake 8 Failing to Prepare for Depositions or Court Appearances
The physician must guard against overconfidence and work with the attorney to prepare carefully for any testimony that may be given. The physician must make time for this important work. The physician’s own attorney should be requested to serve as a devil’s advocate, and ask the physician the tough questions that opposing counsel is likely to ask.
Action Step Physicians should never underestimate the importance of preparing for testimony. The physician must review all relevant documents, and work with counsel to understand any potential areas of weakness.
Mistake 9 Having Unrealistic Expectations of Counsel
The physician must remember that the attorney was not directly involved in the facts that gave rise to the dispute. An attorney cannot be a mind reader. The physician must carefully explain all relevant facts—good and bad—to counsel so that the attorney may properly evaluate the situation and advise the physician. All such communications are protected from disclosure by the attorney-client relationship, so there is no reason to not be absolutely candid.
Action Step The physician must thoroughly apprise the attorney of all relevant facts.
Mistake 10 Failing to Appreciate That Tactics and Strategy Are Involved
While emotions may run high, the physician must guard against the temptation to personalize the proceedings and hope for a measure of vengeance. The judicial process ultimately resolves matters by an allocation of money, and revenge is a concept best left for movies. Accordingly, the physician must work with the attorney to develop a goal, which will then drive the strategic and tactical decisions that will be made during the process. Litigation must be viewed as a game of strategy, more akin to a game of chess than to a street fight.
Action Step The physician must work with his or attorney early in the process to develop a goal and a game plan to achieve that goal. The physician should not personalize the litigation; it is a business dispute and businesslike decisions must be made.
Conclusion
Physicians who adhere to these action steps will maximize their ability to understand the process and make the best decisions possible with respect to settlement issues or trial.
Written by:
Michael Jordan, Esq.
Peer reviewed by:
Scotty Shively
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them