Your Best Shot at a Successful Defense
Litigation happens! And while you hope never to find yourself embroiled in a lawsuit, if one day you find yourself served with Summons and a Complaint, you want to be the best position possible to defend the claims against you. We counsel that decisions concerning policies and treatment should be driven by what is best for patients, not the specter of litigation, but it’s helpful to be prepared.
As we start the New Year, here are seven things you can resolve to do in your everyday practice which will aid your legal team if you are ever named in a lawsuit.
Stay up to Date – Be informed about new studies, implementations, and procedures in your specialty area. Providers are often asked in deposition about measures they take to stay up to date regarding the latest developments in their practice. The answer can help or hurt your credibility in the eyes of a jury.
Do Your Documentation – Don’t skip the details, complete it in a timely manner, and, to the extent practicable, be sure to include the reasons for your decisions. In litigation, patient care and related decision-making are often analyzed years after the fact. Good documentation will ensure your defense team has the information necessary to defend the claims against you, even if your memory of the events in question has faded with the passage of time.
Informed Consent – Always fully explain the risks and benefits of a procedure or course of medical treatment with your patient, sharing information in terms that a non-medically trained person would understand. Be sure to memorialize your discussion, using a written informed consent document that lists each potential risk, and each possible alternative. This may take more time initially, but it can help your patient better understand their care, while also serving as better documentation in case of litigation.
Communicate with Courtesy – Patients’ perception of how well you respect, understand, and care for them in your practice can encourage them to work with you rather than against you when there is a perceived error. While good communication is rarely an issue in litigation, poor communication is likely to be brought up and can reflect badly on you and your practice in front of a jury.
Treat Patients Consistently – Be sure to follow protocol for each procedure, and don’t skip steps even when time is short. If there is a reason to deviate from the standard procedure, be sure to document that information, providing as much explanation as practicable for the change.
Consult with Your Peers – No one physician can know every symptom and every treatment. If you are unsure, don’t hesitate to ask another provider for help. Juries don’t expect a provider to know all the answers and, in fact, are likely to see those who recognize their limitations and consult with peers as more credible. One caveat: if you are served with a lawsuit, do not discuss the matter with other providers, especially any who may be called to testify.
Don’t Sit on a Summons – Even when you provide good care, lawsuits can happen. If you do receive a summons, don’t hesitate to contact your insurance representative, risk management office, or attorney. The sooner the better because there are deadlines! See more detailed steps to take in Jamie Dittert’s LMS article on handling subpoenas here: https://www.lexingtondoctors.org/2023/04/27/seven-tips-for-handling-subpoenas/.
Having good procedures in place and following them consistently is key not only to ensuring the best experience for patients, but ensuring your own peace of mind that you have met or exceeded the expected standard of care.
Maureen C. Malles is a public entity law and medical negligence defense attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at mmalles@sturgillturner.com or (859) 255-8581. This article is intended as a summary of state and/or federal law and does not constitute legal advice.
This article originally appeared in the Lexington Medical Society December 2024 Newsletter. It is intended as a summary of state and/or federal law and does not constitute legal advice.
