Few things in a clinician's life generates more stress and disruption than an allegation of professional malpractice. The litigation process and the uncertainty it creates may cause a clinician to experience feelings of anger, anxiety and depression, or even physical reactions such as insomnia or stress-related headaches. The first step in alleviating the uncertainty is to understand the litigation process and the defendant's role during each step. The following is an overview of the various phases of the medical malpractice litigation process a defendant may be involved in and recommended strategies to maximize a successful outcome.

Early Indicators of Possible Litigation

Records Request
The earliest indication of a potential lawsuit may be a request for medical records from a patient or a plaintiff's attorney. Such a request, however, may simply be part of an attorney's investigation of an accident or workers' compensation claim, in which case the request is usually made in a letter with a signed authorization enclosed, or by subpoena or other court order.

If you suspect the request for medical records is related to a potential medical malpractice action, notify your professional liability carrier. Ask for assistance in determining the validity of the records request and how to manage it promptly. Importantly, be sure to obtain valid signed authorization before releasing any medical records.

Notice of a Claim
If a patient pursues a claim, the patient's attorney may notify the clinician by letter. In some states, notice may be triggered by statutory requirements, such as a notice of intent to sue or pre-suit notice. Additionally, a number of jurisdictions currently require a medical liability or malpractice case be heard by a screening panel before trial.¹

Statute of Limitations

The statute of limitations defines the time frame within which a plaintiff must file a lawsuit, often one to three years from the date of the alleged injury. The terms of the statutes vary by state and may be different for adults, minors and adults who are not mentally competent. If your attorney believes the statute of limitations has expired, your attorney will file a motion with the court to dismiss the lawsuit.

For the statute of limitations in your state, contact your local medical society or professional liability insurance carrier.

Never Alter a Medical Record

Upon receiving notice that a malpractice suit is about to commence or has been filed, clinicians must ensure the safety and integrity of the patient's medical record. Any changes made to the record after learning of a lawsuit raise questions about the clinician's truthfulness, motives and the quality of the care. Many clinicians and defense counsel have been embarrassed during discovery proceedings to learn that an earlier copy of the record differs materially from the record provided after litigation commenced.

Forensic document experts are frequently called to testify that a paper record has been augmented or altered. In situations in which a clinician has an electronic health record (EHR), counsel will retain information technology experts to conduct a metadata audit. The audit provides a complete analysis of every keystroke (including additions, deletions and changes) and when the entries were made, by whom, and how long a document was open for review and revision. If experts discover that the record has been altered, it can also expose the practitioner to punitive damages and result in a licensing board investigation.

You've Been Served. Now What?

Don't panic! If you receive a summons and complaint (a lawsuit), notify your professional liability carrier. This type of legal document requires a formal response within a prescribed time limit. Failure to respond appropriately may jeopardize your defense or even possibly result in a default judgment against you. Your professional liability carrier will assign a defense attorney who specializes in medical malpractice litigation and will handle the case through resolution.

Pre-Trial Discovery

Attorneys for both parties engage in written and oral discovery to understand the nature and extent of the care provided, as well as the merits of the patient's allegations. During discovery, attorneys for the plaintiff and defense review all medical records and other relevant documents related to the case to fully evaluate the claim. Interrogatories and depositions are two important parts of the discovery process.

Interrogatories (Written Discovery)
Interrogatories are written questions directed by one party to another party designed to further develop the facts or the legal and clinical foundation of a case. Interrogatories directed to health care professionals usually seek background information concerning the individual's education, training, professional experience and credentials.

Interrogatory responses are legally admissible in court, therefore it is imperative that you review your answers carefully with your defense attorney. Your attorney will assist you in preparing accurate and appropriate responses.

Depositions (Oral Discovery)
A deposition is a discovery tool used in virtually all forms of civil, administrative and criminal litigation. It provides an opportunity for both parties to obtain material information, assist in developing strategies for trial, and formally preserve testimony for use later. Testimony obtained in a deposition frequently proves to be the single most important event of the pretrial process. It is almost always crucial to the outcome of a case.

Depositions are conducted under oath in a verbal question-and-answer format. They are always recorded, traditionally by a certified shorthand reporter, who then transcribes the exchanges into a verbatim document that the deponent is required to sign. With increasing regularity over the past decade, the testimony is also preserved by separate audio and video technologies.

Deposition Testimony
In preparation for a deposition, your attorney will meet with you to explain the process, offer recommendations on demeanor and dress, provide valuable suggestions on pitfalls to avoid, and identify probable areas of questioning by the attorneys who will attend the deposition.

Your attorney will also advise you of the best approach to use in answering questions. Your responses should be brief, concise, and delivered in a calm and thoughtful manner. Avoid guessing when you are uncertain of the answer. It is preferable to respond, "I do not know" or "I do not recall."

During your deposition, your attorney may perceive that a question is ambiguous or subject to a legal objection. Allow your attorney to state the objection and consider the objection when formulating your answer. The objection may alert you to an ambiguity or hidden meaning that is not otherwise apparent. Your attorney can also instruct you to refrain from answering a question that the attorney believes is an effort to elicit information that is not legally discoverable.

Key factors to keep in mind:

• Tell the truth. Deponents must promise to "tell the truth, the whole truth, and nothing but the truth." Failure to comply with the oath may be considered perjury (often a felony) that is punishable and may result in fines, sanctions and even imprisonment.
• Answer only the question asked. Deponents should listen carefully, answer only the question asked and then stop talking. Volunteering extraneous information prolongs the proceeding and identifies potential new areas of inquiry that opposing counsel may not have previously considered. One classic tactic is for the attorney to pause, leaving dead air that tends to be uncomfortable and can lead the deponent to resume talking.
• Maintain respect. When providing deposition testimony, be well prepared in advance, appear on time and appropriately attired, always act professionally and courteously, stay focused, and respond to the questions directly and with respect.

Expert Witnesses
The use of expert witnesses is critical to professional liability cases. Expert witnesses help to define the standard of care and determine if any deviations have occurred. Both the plaintiff and defendant retain experts – sometimes more than one – to provide opinions on issues of causation and damages. Considerations when retaining an expert witness include the expert's education, training and experience. It is also important to have an expert who is articulate and likely to be well received by a jury.

Dismissal, Settlement or Trial

The litigation process can be lengthy, typically lasting two to five years, and even longer in some jurisdictions. Be prepared for extended periods of inactivity. The legal process is inefficient and impossible to control. Flurries of activity are often followed by prolonged periods of inactivity. Depositions are often scheduled, canceled and rescheduled.

At some point, enough information will have been gathered during the pre-trial discovery process for an assessment to be made about whether the case is defensible through trial or settlement should be considered. These decisions will be made between you, your attorney and your insurance carrier.

It's possible, however, that the case may be dismissed during the discovery process if the plaintiff's attorney determines the case lacks the elements needed to recover damages. According to the National Practitioner Data Bank, between 80% and 90% of defensible claims are dismissed with no settlement.² Additionally, 96.9% of successful medical malpractice claims are settled out of court.³ Thus, only a very small percentage of medical malpractice cases ever proceed to trial.

Take Care of Yourself

Participating in a lawsuit can be challenging, difficult and stressful. Remember you are not alone. Emotional reactions to litigation are normal and there are people and resources available to help.

• Continue to maintain a healthy lifestyle with proper diet and exercise.
• Share your feelings to help maintain positive psychological health.
• Seek professional assistance when feelings of anxiety and distress interfere with daily work and relationships.
• Stay engaged with the litigation process. Your attorney needs your expertise and partnership. Staying engaged also minimizes uncertainty and allows you to feel more in control.
• Know that you will get through this stressful time.

References

1. Morton H. Medical Liability/Malpractice ADR and Screening Panels Statutes. National Conference of State Legislatures. Updated Aug. 10, 2021. Available here.
2. U. S. Department of Health & Human Services. National Practitioner Data Bank. Data Analysis Tool. Available here.
3. Rubin JB, Bishop TF. Characteristics of paid malpractice claims settled in and out of court in the USA: a retrospective analysis. BMJ Open 2013;3:e002985. doi:10.1136/bmjopen-2013-002985

Keywords: Cardiology Magazine, ACC Publications, Malpractice, Liability, Legal, Medical Records, Health Personnel, Lawyers