Written by Sarah Lim, CA Lic# 0M52397

GUIDE TO NAVIGATING A MEDICAL MALPRACTICE CASE 

Medical malpractice lawsuits can be extremely complex and can be life-changing for all parties involved.  The reactions and decisions that need to be made by the insured can be affected by the emotions that tend to run high in these types of situations.  Therefore, the following 8 tips will provide guidance on what to do as well as what NOT to do when faced with a malpractice lawsuit.

1)    Contact your Medical Malpractice Insurance Company

If you see a possible claim or lawsuit arising, contact your malpractice insurer to discuss the current situation.  Your insurer will help cover the financial burdens of a lawsuit.  These include defense fees, expert witness costs, legal fees, settlements, etc.  However, be aware that there may be provisions/endorsements in your policy that limit how much of the financial responsibility the insurer will take on.  The insurer will also send a knowledgeable claims representative to help guide you through the entire process.  The representative will advise you on how to react, respond, and protect your interests. 

 2)    Organize and Gather Patient Records

It is critical to collect and organize the necessary documentation that will be included in the litigation process.  It is very important that any records or documents are not altered in any way, even if it is to clarify events further, as this can be considered tampering or fraudulent activity and will consequently compromise your credibility.  This information should be given to your insurance representative and/or attorney as soon as possible. 

3)    Prepare for a Lengthy Process

Most malpractice lawsuits will take anywhere from two to five years to completely resolve.  There can also be a period where there is little to no activity or communication which can play with your emotions as well.  Therefore, it is vital that you continue to trust your counsel and follow any instructions/guidelines given.   

4)    Remember that Oftentimes It’s Out of your Control

There is very little control over how events can unfold once things get rolling.  Most insurance carriers will deliberate in private whether the claim should be defended or settled.  They will also look at all the available information including depositions, medical records, etc.  In all this, the Consent to Settle Clause is a provision that does allow you some control.  This states that the insurer cannot settle a case without the insured’s consent.  Keep in mind though, that not all insurance carriers provide this clause.  There are some carriers that will include a contract clause giving them full control over this kind of decision so beware.

5)    Practice Your Testimony

Almost always will you be required to give a deposition.  This includes a legal testimony under oath before the trial proceedings, somewhat like a practice run.  Your legal counsel along with your malpractice insurance representative will help you perfect your testimony.  Follow the directions given to you as they have the most experience and training in understanding how things play out in court.  Keep your emotions in check, make sure to practice and revise the content of your testimony with your counsel, and be prepared to explain treatments and medicine to the jury as if they were your patients.  Lastly, be prepared for interruptions and questions throughout your testimony by the plaintiff’s attorneys.  

6)    Stay Involved in the Process

Throughout the process, stay in direct contact with your counsel and malpractice insurance representative.  Stay engaged by having more in-depth discussions with your counsel and do any further research that can be of assistance instead of leaving everything up to counsel.

7)    Do Not Share with Others

You should never share explicit details about the case or what’s happening in court, or divulge details about the event or injury to anyone.  Definitely never engage in communication with the other patients or staff.  These are considered breaches in privacy and could have serious consequences.  It is also always possible that the eyes and ears of the plaintiff’s counsel are nearby and any information gathered can be used against you in court. 

8)    Avoid Interactions with the Plaintiff

From the second the lawsuit is filed all the way through to the final decision, all interactions with the plaintiffs, relatives, and associates should be avoided.  Anything said or done can be used to further their argument and consequently add more fuel to the fire.  If you are approached by the plaintiff, walk away or dismiss them without any sign of aggression.  Do not communicate, touch, or talk to anyone else about them. 

Having a malpractice lawsuit filed against you is stressful enough but by having the right policy with the necessary provisions included can give you peace of mind that you are protected to the fullest extent.  California Attending Physicians has the ability to ensure that you have the necessary amount of protection with the best carriers.  Contact us today to review your current policy with us.