Lancaster Physician Winter 2020 - 17

WINTER 2020

filed, it can take years to resolve, so prepare
yourself for a long road. Most importantly,
get on the team. Your involvement in your
defense will make a significant difference.
First, contact your professional liability
insurance carrier and promptly send them
the papers that you received. If you are
employed by a hospital or health system,
contact your risk management office. In
Pennsylvania, the document that initiates
a lawsuit may be a Writ of Summons or a
Complaint. The Writ of Summons provides
notice that a lawsuit has been filed but does
not contain any facts or statements describing
the basis for the lawsuit or the legal claims
made by the patient. If the initial filing
document is a Complaint, the patient's
allegations will be described in numbered
paragraphs setting forth the facts related
to the treatment underlying the lawsuit as
well as the legal claims being asserted, such
as claims for negligence or lack of informed
consent. Even when a lawsuit is begun by a
Writ, the plaintiff (patient) will be required
to file a Complaint at a later time. There are
set periods to respond, and you do not want
to jeopardize either your coverage with your
insurer or the defense of your lawsuit, by
failing to act in time. Therefore, a prompt
notification to your insurer, or to the individual in charge of your insurance, is crucial.
Next, keep the information with respect
to the case private and confidential. At this
point, you have received notice that your
patient is represented by an attorney, so you
should not simply pick up the phone and
call the patient or attempt a well-meaning
email or text. Do not call the patient's
lawyer either. Frankly, do not discuss the
facts relevant to the lawsuit with anyone
until you have spoken with your professional liability insurance carrier or risk
manager. Your case will be assigned to an
experienced malpractice defense attorney,
and you should make sure that it does. That
attorney should promptly sit down with
you and fully discuss the facts as well as
address your questions and concerns about
the litigation process within the protection
of attorney/client privilege. If you are not
satisfied with the counsel provided by your
insurance carrier, you have the right to seek

IT IS
IMPORTANT
TO REMEMBER
THAT THE
ALLEGATIONS
OUTLINED
IN THE
COMPLAINT
ARE SIMPLY
THAT:
"ALLEGATIONS."
private counsel, but you will have to pay
those costs yourself.
Be sure to take measures to secure the
patient's chart. Find out how to "lockdown" the electronic record. If you have any
records in a paper chart, it is advisable to
pull the chart and place it in a secure location. Absolutely do not make any changes
to the record. This is not the time to add
a note to try to clarify your treatment, add
details of an informed consent discussion,
or attempt to document care that is not
already reflected in the records. Charts that
look suspicious get an "FBI-type" document
review. Changes in electronic medical
records leave a traceable metadata trail that
will likely be dissected during the litigation
process. Any additions or revisions made
to the record after a lawsuit is filed will be
scrutinized as self-serving and are usually
detrimental to the defense of your case.
It is important to remember that the
allegations outlined in the Complaint are
simply that: "allegations." While they are
often frustrating to read, keep in mind that
the Complaint is the opportunity for the
plaintiff (patient) to present their side of
the story. Although the law requires the

LANCASTER

PHYSICIAN

plaintiff to have a good faith basis for each
allegation, the narrative will obviously be
slanted in favor of the plaintiff. Don't be
surprised if the description is taken to the
extreme in an attempt to embellish details
of the case.
Finally, after you take the appropriate
initial steps, become a member of your
defense team. Let your defense attorney
handle the legal process and details, freeing
you to focus on caring for your patients. At
a later date during the process you will likely
provide your testimony in a deposition. In
the deposition, the plaintiff's attorney will
ask you questions about your education,
experience, and care of the patient. You
will answer questions under oath, and your
attorney will sit with you to represent you,
object to inappropriate questions, and in
some circumstances, ask a few follow-up
questions to be certain that your side
of the story is clear on the record. Your
deposition is the most significant event
you will participate in prior to trial. Insist
on being well-prepared by your attorney
and take the time to ensure you're ready.
Thoroughly review and become familiar
with your medical record. Be available to
your lawyer to help prepare your defense.
As noted previously, most lawsuits are
resolved prior to trial, but the process can
take years. The case may be withdrawn
or settled after some factual discovery.
In some situations, the entire case may
be dismissed, or you could be dismissed
individually while the rest of the case
continues against other defendants.
While this experience may shake your
confidence a bit and feel quite overwhelming,
try not to let it affect your practice and your
life. Malpractice claims are unfortunately
part of medical practice. However, by
enhancing clinical care with open communication, thorough documentation, and
patient-centered strategies and tools, you
can take effective steps to lessen your future
risk of a claim and improve patient care at
the same time.

Lancaster Physician Winter 2020

Table of Contents for the Digital Edition of Lancaster Physician Winter 2020