Common misconceptions about medical malpractice

It’s an unfortunate reality for many physicians, but a malpractice suit isn’t so much a matter of ‘if’ as it is a matter of ‘when’. Bad outcomes, regardless of negligence, have a certain statistical probability that’s unavoidable.

However, the NEJM article points out that “most claims do not lead to payments to plaintiffs.”

According to the Bureau of Justice Statistics, malpractice plaintiffs win their cases in less than 25% of malpractice trials. When they do win, however, the median awards tend to be 17 times higher than those of typical tort jury trials.

With that preliminary grounding in the data of medical malpractice, let’s take a look at some of the common misconceptions surrounding the malpractice process.

Legal representation

The malpractice process typically begins with a doctor receiving a notice letter, which is a legal letter from the plaintiff’s attorney initiating the lawsuit. If you’re on the receiving end of one of these letters, your inclination may be to call your attorney. In actuality, you should call your malpractice insurance carrier.

In exchange for paying your malpractice insurance (or your employer paying for malpractice insurance on your behalf), you receive two things in return: 

• Defense and indemnity

• Assignment of counsel

Under the former, in exchange for paying the premiums, your insurance carrier must retain a lawyer on your behalf and defend the claims brought against you. Not only must they defend you, but they must also pay for your defense and pay any settlements up to your policy limits.

Under assignment of counsel, your carrier must assign a lawyer to your case. Your carrier may honor your request to work with a specific partnering attorney. Ultimately, your carrier will pay for this attorney. You may bring in a personal attorney, but your carrier likely will not pay for it.

The best defense

Some physicians think that the defense process begins when the notice letter arrives. But ideally, it should start at the beginning of a physician’s practice. Remember, your malpractice insurer is financially incentivized to prevent you from being sued in the first place. They’re quite content to collect your premiums in exchange for you never requiring their services. 

Reach out to your insurance carrier before you’re sued. Ask them for resources, such as educational materials, that you can use to mitigate risk of a lawsuit. For example, if you’re in a high-risk specialty, your carrier may have educational materials you can distribute to patients or their families, which spell out the risk of specific procedures. Or, they may have educational materials for you and your staff that elucidate best practices in patient communication or documentation. 

Preserve all documentation as is

Documentation is the key to preparation in the defense of malpractice claims. Proactivity contributes to your defensibility in this arena, as well. For example, your EMRs should be thorough and consistent. Your defense will hinge on your attorney’s ability to prove that you adhered to the standard of care. Documenting that adherence gives weight to your defense. 

You might be thinking, what if I slipped up and in the case that prompted the lawsuit and my documentation was insufficient? In this case, you need to leave the patient’s chart alone. According to The Physician’s Guide to Medical Malpractice, published in Baylor University Medical Center Proceedings, this is crucial.^[]

“It is imperative that no changes, alterations, or deletions be made in the chart,” the guide reads. “If a lawsuit does develop, even the appearance that an alteration has been made can have a devastating impact. The chart must remain in exactly the same condition it was in before the physician had notice of the claim.”

The urge to vent

A malpractice suit is certainly painful. You might feel compelled to vent your frustration to colleagues. Or, you may share patient records with them and seek their opinions on the case. In a word: Don’t.

While this may feel therapeutic, it may harm your case, should it progress. For example, every lawsuit has a discovery phase during which each party may obtain information and documents relevant to the lawsuit. If you discussed the case with a colleague, that conversation may be discoverable and consequently, may become a part of the evidence in the case.

Let’s say you discussed your case with a fellow doctor. You disclose this to your attorney and now that conversation becomes part of the discovery process. During discovery, the colleague says that you called the patient “foolish, unreasonable, and dramatic.”

This may be an objective truth, but it certainly doesn’t look good in the eyes of a judge or jury. As difficult as it may be, it’s safest to discuss the claim only with your insurance carrier and attorney. Chances are, they will be quite sympathetic to the emotional aspects of your experience.