By James W. Saxton, Esq.
The environment in Pennsylvania right now mandates being more proactive about what to do when a lawsuit is filed. First of all, pursuant to Section 903 of the new Medical Care Availability and Reduction of Error Act (MCARE) as of March 20, 2002, physicians must send notice to the State Board of Medicine or State Board of Osteopathic Medicine within 60 days of, among other things, a complaint in a medical professional liability action.
The statute states that a physician must report the date on which the complaint was filed, when it was served, the docket number, as well as a summary of the claims and defenses. This should only be done in conjunction with your attorney. It is unclear as to precisely how much information should be provided and the best policy right now is to give a very generic statement about the allegations and defenses since there is the ability for someone from the State Board to follow up for more information if deemed necessary.
There also are a number of actions a physician can and should take, as well as some activities that are ill-advised when a lawsuit is filed. Once you receive notice of a claim, not only do you have an obligation now under the new MCARE Act to provide notice to the State Board, but you must quickly forward this information to your professional liability insurance carrier. You have certain contractual responsibilities to your insurance carrier and failing to provide them with notice could jeopardize your coverage.
Once you provide this information to the insurance carrier you will promptly be notified by an attorney who is retained by your insurance carrier to represent your interests. Certainly the lawyer will want to meet with you to review the facts in a particular case, obtain all of your medical records and explain the process, as well as to set forth an initial plan.
Make sure the patient’s chart is in a safe place and make no changes. Even if misplaced in good faith there could be an inference that somehow this was an intentional act which could also hurt your defense. Even the most benign revision could prove to be disastrous. Many plaintiffs’ counsel regularly employ the services of handwriting experts to review files where it appears that certain writing is out of place. An addition to the record without being appropriately timed and dated, even if it involves an irrelevant matter, is going to detract from the overall credibility of your case and may mandate a settlement.
Make sure that you speak to no one concerning the facts surrounding this suit, except someone from the insurance carrier or your attorney, because such discussions are not protected from discovery. At depositions a frequently asked question is, “Please relate to me with whom you have spoken about this case.” This is particularly true with concurrent or subsequent treating physicians. There will be an intuitive desire to want to ask the subsequent treating physician, “What happened with the patient?” “Do you see any merit with these allegations?” “Did you have any conversations with the patient?” Having an unprotected conversation about these issues could prove to be harmful to your defense. There will be a time and process to obtain this information and it is something in which your attorney will be involved and will offer advice.
You will receive a complaint which will set forth specific allegations to which you, with the help of your attorney, will have to respond. You will have to verify the Answer and you will need to review it carefully. Certain discovery requests will need to be addressed, such as Interrogatories, which are questions, or Request for Production of Documents, which literally asks for certain documents in your possession such as medical records, billing records and your curricula vitae. These answers are important because they may form the basis for questions which will take place during your deposition.
Make sure you have a separate file for the legal documents which you receive from your lawyer. There have been horror stories of busy medical practices filing the letters from their attorney with the medical chart and when plaintiff’s attorneys ask for updates or perhaps the chart again, they also get the letters from your attorney included which are privileged and confidential.
Ask your attorney early about an expert. An expert ought to be retained early so that he or she can review the chart and determine what issues may have merit. Often we look at these cases through biased eyes, even if we are attempting to be as candid as possible. Having an expert early on, certainly prior to your deposition, can be very helpful from a preparation standpoint. Ask your attorney to provide you with a curriculum vitae of the proposed expert. Jurors tend to give experts more credibility who have a balanced mixture of academic and clinical experience; they do not particularly want to see someone whose purely in an ivory tower.
Consider whether different experts are needed for different aspects of the case. Malpractice cases are generally divided into three issues. Was there a breach in the standard of care? This means having an expert who is familiar with the standard of care in your specialty, understands the facts in the particular case and can opine on whether the care and treatment met that standard of care. The next question is one of causation. Is there a relationship or a substantial factor between the alleged breach of the standard of care and damages (which is the third issue)? Often this may involve a different type of expert than the one who comments on the standard of care. For example, in a failure to diagnose breast cancer case for a family doctor you may find yourself with an expert in family practice, an oncologist, and then a pathologist who reviews the slides and provides causation and damage testimony.
Preparation is important at every stage: understanding the pleadings that have been filed; reviewing the answer to the complaint carefully; reviewing the answers to interrogatories for accuracy and correctness. One of the hallmarks of your defense will be your deposition. Making sure that you are adequately prepared for your deposition will go a long way toward either ending the case earlier or at least having a solid deposition if the case is tried. You should receive a copy of all documents that may be relevant at the deposition. Understanding the type of questions that will be asked and the method in which the particular attorney will ask questions is very helpful. Doctors can be very proactive and go on the offensive during deposition, but only with adequate preparation.
Understanding the process will also make the issue of settlement more understandable when or if it comes up. The question of settlement for physicians in Pa. is a critical issue, as professional liability insurers are becoming more stringent in their underwriting standards and having several claims could render a physician uninsurable. Although some malpractice insurance carriers may take the initial position that consent is not required, these insurers and the Pennsylvania Insurance Guaranty Association have a fiduciary obligation to you. If a physician is going to have a case settled without his or her consent, over their objection, and for reasons which the physician does not feel are in his or her best interests, they should contact their own attorney so that they truly understand their rights and options. A settlement is too significant of a decision and has too many implications to become simply a business decision. Those days are over.
Having a professional liability claim is like a statistical equation in which certain factors affect the outcome. You are an important part of that equation in so many ways. Getting involved early and often will help bring a little more peace of mind to you and also improve the equation.
James W. Saxton, Esq., is Chairman of Stevens & Lee Healthcare Litigation Group in Lancaster, Pa.