Physicians Practice - October 2008 - (Page 44)

MALPRACTICE voluntarily dropping the case, trying the case, or the insurance company reimbursing the plaintiff’s attorney for some of his expenses without paying indemnity. Note that settlements using indemnity funds, like adverse judgments, are reported to the National Practitioner Data Bank. The deposition part is where many cases are won or lost; preparation is key. You’ll need to know the patient’s medical record inside and out. This is particularly important, as the plaintiff’s attorney may have access to other records from outside providers and will have spent countless hours don’t answer right away,” advises Raskin. “That gives your attorney time to object and it gives you a chance to collect your thoughts and determine how best to answer.” The questions opposing counsel asks will be “purposefully convoluted,” says Raskin. “The plaintiff’s attorney will often try to be your friend,” he says. “Don’t fall for it. They’ll try to be nice to you so you let your guard down and then come in and hit you with something unexpected. They’re trying to trip you up.” Other advice? Keep it simple and volunteer nothing. “Answer question with a ‘yes’ or ‘no’ or ‘I don’t know’ where possible,” says Raskin. Resist the urge to try to justify your rationale or treatment protocol. ON THE STAND FACE REALITY Fight the urge to push your lawsuit out of sight and out of mind. preparing questions. The deposition may take several hours — and it won’t be easy. Opposing counsel will use whatever tactics it deems necessary to try to make you say something incriminating or appear incompetent in the eyes of the jury. Still, take heart in the fact that your attorney will be at your side, offering guidance. “When you’re asked a question during deposition, take a deep breath and DISCOVERY Once the petition is ﬁled in court and you are served, the lawsuit is underway. Both parties will enter a “discovery” phase, where they obtain relevant documents to help them make their cases. They’ll also secure expert witnesses and take depositions or oral testimony under oath that may be used in court proceedings. THREE ABSOLUTE NO-NOs WHEN FACED WITH A LAWSUIT Yes, being sued is a scary thing. Don’t make it worse for yourself by doing any of the following: Altering the patient’s chart. Once you receive the notice, immediately take that patient’s chart and set it aside. Don’t alter it in any way. Repeat: Don’t alter it in any way. “That is the biggest and most costly mistake I’ve seen physicians make,” says Carolyn Caccese, an associate and plaintiff’s attorney for malpractice cases at Salenger, Sack, Schwartz & Kimmel in New York, whose ﬁrm usually gets a copy of the medical record before a case begins. “If the doctor makes any changes to his copy, even if it’s just to clarify poor documentation, the jury sees that as almost an admission of guilt.” Michael Raskin, a neuroradiologist in Tamarac, Fla., an attorney, and president of the American College of Legal Medicine agrees, noting it still happens “very often.” “Most of the time the corrections made on charts are minor and really don’t change anything, but it doesn’t matter how innocent it is,” he says. “Once they hear the chart has been altered it never gets to trial.” Discussing the case. Even at this early stage, never discuss the case (or potential case) with anyone other than your insurance company and your attorney. Sharing details with a colleague, for example, could come back to haunt you. “If a suit gets ﬁled, you will be asked during the deposition whether you discussed this case with anyone, and you are required under oath to tell them the names of the people you spoke to and what you told them,” says Raskin. “There is a tendency when you are facing a malpractice suit to want to get approval from your colleagues that you did nothing wrong. Resist that urge and keep it to yourself.” Going it alone. Above all else, he notes, never try to settle a legal dispute with a disgruntled patient on your own. Anything you say to the patient, his family, or his attorney can be used against you. “Leave it to your attorney,” says Raskin. “That’s what you pay your insurance premiums for.” Before the case reaches trial, both sides may try to settle the case out of court. Failing that, the trial phase begins. “Once the case goes to a jury or a judge for verdict, there is an element of control that is gone, even in the most well-prepared and wellpresented case,” says Pat Monahan, a partner with Garfunkel, Wild & Travis in Stamford, Conn. “The question becomes, how willing are READ MORE ABOUT IT! Visit PhysiciansPractice.com for more ideas on preparing yourself for a virtually inevitable lawsuit: • Find out what trial lawyers look for in a winnable malpractice case by reading, “Confessions of a Trial Lawyer” in our April 2008 issue. • Avoid lawsuits by adeptly handling your most difficult patients. Read “Dealing with That Patient” in our September 2007 issue. • Urban legends reign supreme with medical malpractice. Read up on such myths on the Center for Justice Democracy’s Web site, www.centerjd.org. Click on the “Medical Malpractice” link. 44 | PHYSICIANS PRACTICE | OCTOBER 2008 WWW.PHYSICIANSPRACTICE.COM http://www.PhysiciansPractice.com http://www.centerjd.org http://www.PhysiciansPractice.com

Table of Contents Feed for the Digital Edition of Physicians Practice - October 2008

Physicians Practice - October 2008 Contents Another Reason to Go Cash-Only? Letters How ’Bout Them Gas Prices? Second Opinion: Oh, Canada! Noteworthy Cover Story: Fixing the Leaks: How to Tighten Your Money Spigot Navigating a Lawsuit Ask the Experts The Administrators Desk: What’s Your Mission? EMR: Help or Hindrance? Dealing with Dr. Dangerous E-Mail Abuse Primer The Road to EMR Interoperability Don’t Let Staff Costs Stifle Profits Coding Classifieds Advertiser Index

Physicians Practice - October 2008

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