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Responding to claims and lawsuits
RESPONDINGTOCLAIMSANDLAWSUITS*
What do you do if you think you are about to be sued, or if you actually receive a summons and complaint? Most physicians have never experienced such an event, and therefore are not aware of the best steps to take. Your first actions can be critical to the outcome of a potential or actual lawsuit. Management of incidentsevents suggesting the possibility that a patient may initiate legal actionis very important. The following information is provided as a guide to handling events that set the stage for a lawsuit and to playing your role as a defendant. There are five precepts you must remember: Call your insurance company when you have any reason to suspect that a claim may be filed: when there is any unexpected negative outcome, when the patient complains about your performance, or when there is a request for the patient’s records. This is the first and best line of defense, and allows for thorough preparation on your behalf. Don’t talk to a patient’s attorney about your treatment of the pa* Reprint permission granted by the American College of Obstetricians and Gynecologists. The Assistant: Information for Improued Risk Management. Washington, D.C., March 1983.
Journal of Nurse-Midwifery Copyright
Q 1985 by the American
??
tient. Before the attorney invests time and money in a case, he will want to ascertain the potential for winning. Your statements can only bolster his case. Don’t make changes in the patient’s records. The natural temptation is to review the record, looking for errors or omissions; if they exist, making changes will only make them more damaging. A strong record is your best ally. Tampering with the record destroys your credibility and defensibility. Tell the truth to your insurance company and your attorney. They are on your side, regardless of what you did or didn’t do. Always relate the facts candidly and precisely, in order that they may represent you to your maximum benefit. Don’t panic and don’t be angry. This advice is not as simplistic as it may seem. The attorney who represents the plaintiff files lawsuits frequently-it is business as usual for him. If he can cause you to become defensive and angry, his job will be much easier, because you will become the victim of your own anxiety. Remember, anger is the enemy of reason and the compromise of responsible behavior. If you are actually named in a lawsuit, you must prepare for the events that will take place. The following guidelines should serve your interests in the course of a lawsuit.
Vol. 30, No. 6, November/December
College
of Nurse-Midwives
1985
THE RECORD
Become thoroughly familiar with all aspects of the case and the patient record, which is the framework for any lawsuit. Again, do not make changes in the existing record. You may make additions, if dated and initialed, but any new remarks may do more damage than good. Become clear on your recollections of events and reasoning behind the modalities selected for treatment, and consider who among your staff and colleagues might make a contribution to interpretation of the course of treatment (ie, was your nurse present at discussions of alternative treatments? Was another physician consulted on an important procedure?). Your familiarity with the case will save you and your attorney time, money, and the risk of mistake. THE LAWYER
Your attorney, whether employed by you personally or by your insurance company, should represent your overall interests first. It should be a relationship of honesty, trust, and cooperation. Your attorney should be aware of all aspects of the case, including matters neglected by the record, if any. so he will not be surprised (and your case weakened) when such information comes to light at a later date. He should explain fully the legal process as it affects you and guide you through the steps that
347 0091.2182/85/$03.30
can be anticipated in a lawsuit. He should prepare you for depositions and for a courtroom appearance, if necessary, and should be available when questions arise. It is your responsibility to ask questions when you have doubts or fail to understand the process, and you should insist on guidance prior to any appearance before the plaintiff, other lawyers, or a court.
precept: don’t be angry. You must make every effort to be calm, courteous (even to the plaintiff’s attorney), polite, and humble without being too self-effacing. Especially when giving testimony in depositions and on the stand, your statements should reflect the serious nature of the proceedings and your professional attitude.
YOUR BEHAVIOR
THE COURT APPEARANCE
Even with the best patient record and highest quality care, a jury may find you liable simply because they don’t like your attitude or behavior. When you appear before a judge or juy, bear in mind their enormous discretion. Remember the earlier-stated
If you actually go to court, your “performance” will be as strictly judged as your professional services. Pay considerable attention to your appearance, dressing moderately and exhibiting interest in the proceedings. Be confident but not imperious.
348
Journal of Nurse-Midwifery
??
When expressing your opinion speak clearly, with certainty and firmness, and be decisive about the facts and your medical judgments. Speak directly to the attorney, the judge, or the jury, as is most appropriate. Above all, pay attention to the proceedings and participate to the extent suggested by your attorney. If possible, see that your family is in the courtroom. You probably will never be named in a lawsuit; if you are, you will likely be vindicated. But paying attention to details in record keeping and in communication with patients, and exhibiting professional behavior as described above will contribute significantly to minimizing the risk of finding yourself at the defendant’s table in a court of law.
Vol. 30, No. 6, November/December
1985
What do you do if you think you are about to be sued, or if you actually receive a summons and complaint? Most physicians have never experienced such an event, and therefore are not aware of the best steps to take. Your first actions can be critical to the outcome of a potential or actual lawsuit. Management of incidentsevents suggesting the possibility that a patient may initiate legal actionis very important. The following information is provided as a guide to handling events that set the stage for a lawsuit and to playing your role as a defendant. There are five precepts you must remember: Call your insurance company when you have any reason to suspect that a claim may be filed: when there is any unexpected negative outcome, when the patient complains about your performance, or when there is a request for the patient’s records. This is the first and best line of defense, and allows for thorough preparation on your behalf. Don’t talk to a patient’s attorney about your treatment of the pa* Reprint permission granted by the American College of Obstetricians and Gynecologists. The Assistant: Information for Improued Risk Management. Washington, D.C., March 1983.
Journal of Nurse-Midwifery Copyright
Q 1985 by the American
??
tient. Before the attorney invests time and money in a case, he will want to ascertain the potential for winning. Your statements can only bolster his case. Don’t make changes in the patient’s records. The natural temptation is to review the record, looking for errors or omissions; if they exist, making changes will only make them more damaging. A strong record is your best ally. Tampering with the record destroys your credibility and defensibility. Tell the truth to your insurance company and your attorney. They are on your side, regardless of what you did or didn’t do. Always relate the facts candidly and precisely, in order that they may represent you to your maximum benefit. Don’t panic and don’t be angry. This advice is not as simplistic as it may seem. The attorney who represents the plaintiff files lawsuits frequently-it is business as usual for him. If he can cause you to become defensive and angry, his job will be much easier, because you will become the victim of your own anxiety. Remember, anger is the enemy of reason and the compromise of responsible behavior. If you are actually named in a lawsuit, you must prepare for the events that will take place. The following guidelines should serve your interests in the course of a lawsuit.
Vol. 30, No. 6, November/December
College
of Nurse-Midwives
1985
THE RECORD
Become thoroughly familiar with all aspects of the case and the patient record, which is the framework for any lawsuit. Again, do not make changes in the existing record. You may make additions, if dated and initialed, but any new remarks may do more damage than good. Become clear on your recollections of events and reasoning behind the modalities selected for treatment, and consider who among your staff and colleagues might make a contribution to interpretation of the course of treatment (ie, was your nurse present at discussions of alternative treatments? Was another physician consulted on an important procedure?). Your familiarity with the case will save you and your attorney time, money, and the risk of mistake. THE LAWYER
Your attorney, whether employed by you personally or by your insurance company, should represent your overall interests first. It should be a relationship of honesty, trust, and cooperation. Your attorney should be aware of all aspects of the case, including matters neglected by the record, if any. so he will not be surprised (and your case weakened) when such information comes to light at a later date. He should explain fully the legal process as it affects you and guide you through the steps that
347 0091.2182/85/$03.30
can be anticipated in a lawsuit. He should prepare you for depositions and for a courtroom appearance, if necessary, and should be available when questions arise. It is your responsibility to ask questions when you have doubts or fail to understand the process, and you should insist on guidance prior to any appearance before the plaintiff, other lawyers, or a court.
precept: don’t be angry. You must make every effort to be calm, courteous (even to the plaintiff’s attorney), polite, and humble without being too self-effacing. Especially when giving testimony in depositions and on the stand, your statements should reflect the serious nature of the proceedings and your professional attitude.
YOUR BEHAVIOR
THE COURT APPEARANCE
Even with the best patient record and highest quality care, a jury may find you liable simply because they don’t like your attitude or behavior. When you appear before a judge or juy, bear in mind their enormous discretion. Remember the earlier-stated
If you actually go to court, your “performance” will be as strictly judged as your professional services. Pay considerable attention to your appearance, dressing moderately and exhibiting interest in the proceedings. Be confident but not imperious.
348
Journal of Nurse-Midwifery
??
When expressing your opinion speak clearly, with certainty and firmness, and be decisive about the facts and your medical judgments. Speak directly to the attorney, the judge, or the jury, as is most appropriate. Above all, pay attention to the proceedings and participate to the extent suggested by your attorney. If possible, see that your family is in the courtroom. You probably will never be named in a lawsuit; if you are, you will likely be vindicated. But paying attention to details in record keeping and in communication with patients, and exhibiting professional behavior as described above will contribute significantly to minimizing the risk of finding yourself at the defendant’s table in a court of law.
Vol. 30, No. 6, November/December
1985