The risk of a lawsuit is a feared aspect of practicing medicine. However, there are some ways to know in advance that a lawsuit might be imminent. Likely signs of a potential lawsuit include a request for medical records from an attorney (reviewing viability of a lawsuit), a request for a refund, or being asked to speak with a plaintiff’s attorney on a case against another physician (call, letter or subpoena). Review sites may also alert you to a potential upcoming threat or action.
If you believe a lawsuit may be imminent, your first step is to contact your malpractice insurance carrier. Wait too long and they may refuse to cover it due to lack of notice. In the meantime, be proactive and prepare.
Keep in mind there are also strict response times once a lawsuit commences. Time frames for response to a suit can be relatively short, so engaging with a litigator to avoid default is important.
Your insurance carrier will assign an attorney to you, but if you prefer to hire your own, they may allow you to substitute a different attorney. In the meantime, consult and compile medical literature to build a defense, and compile relevant records and notes.
If you are not near the lawsuit phase, then try to engage directly with the patient. Avoid writing anything to them as even an apology can risk making an admission as to wrongdoing or improper care. Be nice no matter how angry, mean or insulting they may be. If you allow yourself to be provoked and respond accordingly, you can almost ensure they will elevate the matter to hiring a lawyer or making a harassing report to licensing authorities not to mention posting more and more negative reviews. Be warned: Sending a threat letter in response to negative reviews more often than not provokes more reviews, not less, and may even include posting the threat letter online for public consumption. If you do write anything, avoid responding by email as we tend to be too informal. It is best to have an attorney or an objective, calm third party ghost write a response for you. But be careful who you tell about anything, as friends and colleagues today can become enemies or resentful former employees tomorrow.
Regardless of how you proceed, preserve evidence. Do not edit past records. Attorneys can tell when modifications have been made to both paper and electronic copies, and most record platforms have metadata that can identify changes made or that prevent altering past records. Only supplement past records. Get affidavits from any medical assistants or witnesses who might not be readily available to you years in the future if a claim is filed. Create what we call “contemporaneous business records,” which are an exception to the hearsay rule and can be admitted in court, rather than trying to later create long after-the-fact memos or notes that cannot be admitted into evidence. Separate your evidence into a separate file, so it is not mistakenly sent in response to medical record requests unless relevant to the care or request being made. Preserve all patient correspondence. Be sure to also document all of your own thoughts and recollections, including any conversations and unusual circumstances, or noting what might or might not have been communicated to you at the time, sharing it only with an attorney who must maintain client confidentiality with you (and your insurer).
At the end of the day, however, the most important task is to keep your anger under control and try to defuse the situation. A study in the United Kingdom found that male doctors are more likely to be sued. Take from that what lesson you wish. Always avoid informal email exchanges as an extra check. Maintain rapport with the patient if you are still treating them. Invite them back in if safe for personnel. Replace the urge to give apologies with an effort toward sympathy and empathy.
Finally, note that issuing refunds can be tricky. Under certain circumstances it can be viewed as a “settlement” necessitating reporting to the National Practitioner Data Bank (NPDB). Consult an attorney to determine if it qualifies and whether or not reporting can be rightfully avoided. You may also decide you want the patient to sign a waiver and release of claims along with a covenant not to sue or disparage the practice (including obligating them to remove negative reviews). This may make the patient think twice about posting further negative reviews and suing, but the release itself may still not be enforceable as against public policy, and actions for libel or defamation have “truth” as a positive defense. Further, damages for libel and defamation can be hard to prove, so liquidated damage provisions (a financial penalty) would be advisable to add further teeth. Careful drafting can help preserve enforceable claims within the release without invalidating the entire document.
Lawsuits don’t always come as a surprise. With careful attention, you can recognize signs that legal action may be imminent. Early recognition allows you time to contact your malpractice carrier, prepare evidence and do what you can to diffuse the situation, if possible. If you are concerned that a lawsuit may be imminent, consult an attorney who can give counsel specific to your situation. As noted above, lawsuits can be tricky situations so you will need to have a legal expert in your corner.
