Know what to do when faced with suit
It can be a common occurrence for risk managers, but it still makes your heart skip a little when you learn that there is a new claim or lawsuit against your facility. What do you do? Medical malpractice defense attorneys say what you do immediately after can make a big difference in how the case turns out further down the road for better or worse.
Every defense attorney can tell stories about cases in which he or she wishes the defendant had done something or not done something else in those first hours, days, and weeks after learning of legal action. Risk managers should keep in mind that they will be the point person for making sure the response of many people throughout the organization is correct, says Linda Stimmel, JD, partner and co-founder of Stewart & Stimmel LLP in Dallas.
The first rule is to stay calm, she says. You have to act, but in a deliberate, careful way. Barbara A. Cotter, JD, an attorney with Cook Brown in Sacramento, CA, points out that once a lawsuit is filed, the clock is ticking, and you must act. Most lawsuits require a response within 20-30 days, so you should quickly determine the deadline for your response.
Stimmel cautions that you must not let a lawsuit get bogged down in your organization's bureaucracy. If you miss a deadline, the court won't really care why.
"I've had cases where risk management took the lawsuit to the CEO's desk and it sat there on a stack of papers for weeks because he was on vacation, and it wasn't answered timely," Stimmel says. "The plaintiff can get a default judgment when that happens. The clock starts running from the date of service, so you need to make sure legal counsel know the time frame."
Get confirmation of coverage
Mina N. Sirkin, JD, LLM, an attorney with Sirkin & Sirkin in Woodland Hills, CA, says as soon as you know there may be a potential claim, you should write a certified letter to your E&O insurer, using the address provided on the claims instruction sheet of your policy. If you don't immediately report a potential claim, the E&O insurer can deny your claim, she notes.
"Once you have been served, overnight copies of the malpractice complaint to your E&O insurance company, keeping a receipt of the package delivery," she says. "Immediately request defense in writing. Do not delay this step."
Cecile M. Loidolt, JD, an attorney with Meagher & Geer in Minneapolis, points out that timely notification is important, because your liability insurance requires you to cooperate in your defense and notify your insurance company if you are sued or if you think you did something wrong with a patient's care.
Have the insurer provide written confirmation that a defense will be provided and who the attorney will be, says Charles Holton, JD, an attorney with Womble Carlyle in Research Triangle Park, NC. Communicate with the attorney promptly to confirm his or her involvement and what type of defense will be provided.
"I've seen cases over the years where there was a delay with the insurance company providing counsel, and that leads to real problems," he says.
Loose lips sink hospitals
The risk manager should determine right away whether there have been any previous investigations regarding the incident, says Peter Hoffman, JD, an attorney with Eckert Seamans in Philadel-phia. If there has been a root cause analysis, for instance, that material should be obtained quickly and can form the basis of your own investigation, he says.
"From there you need to assess what you're looking at, whether you owe a defense to anyone, and whether there might be some competing interests," he says.
Loidolt says risk managers should remind physicians and staff to be careful who they talk to once a lawsuit is possible.
"Discussions with colleagues are not protected by the attorney-client privilege," she says. "If you discuss your care with a colleague, and the colleague thinks you did something wrong, then this unfavorable opinion may come out during the lawsuit."
Stimmel says it also is important to track down clinicians who were involved in the patient's care but who no longer are employed with your organization. It may take some legwork to find them, but their professional organizations and friends at work usually can help, she says. Notify them of the plaintiff's potential legal action and remind them not to talk directly with the plaintiff or plaintiff's counsel.
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Avoid most common paths to litigation The best way to avoid a claim or lawsuit is to keep the patient healthy and happy, of course. But even the best health care providers get sued, says Cecile M. Loidolt, JD, an attorney with Meagher & Geer in Minneapolis. You can lower your risk, she says, by avoiding the most common traps: 1. Failing to communicate test results. 2. Failing to follow up with patients. If you tell a patient he or she needs to follow up with you in six months, have a system in place for the follow-up. You cannot force patients to come and see you, but you can document that you communicated that they needed to be seen and that you sent a follow-up reminder card or used other means. 3. Failure to document communications with patients, including phone calls. 4. Blowing off informed consent discussions. If the physician does not agree with certain testing or treatment, but the standard in the community is to offer the testing or treatment, then the doctor should discuss it with the patient and document the discussion in the chart. 5. Lapses in record keeping. Ensure the typed dictation gets into the chart. 6. Delegating too much. For the most part, physicians should give patients informed consent, or explain to patients why they had a complication or bad outcome. 7. Inadequate communication by office personnel and failure to document what communication did occur. If a patient is told he or she needs to be seen because he or she is having chest pain but refused to come in, then whoever handled the call needs to document that the patient was told he or she needs to be seen, was told to come in, and refused. |
"They track the nurse down and call her at home; if she's not been forewarned, the nurse can be caught off guard and start talking. They hear the phrase 'legal counsel' and their former employer's name and sometimes they think they're talking to the hospital's legal counsel," Stimmel explains. "They say things that are very damaging to your case."
Protect your privilege
Cotter points out that once a lawsuit is filed, all communication with the plaintiff must go through your own attorneys. Never break this rule, she warns.
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Don't create new evidence for case Don't let people involved in a legal action inadvertently create new evidence that can be used against you, warns Linda Stimmel, JD, partner and co-founder of Stewart & Stimmel LLP in Dallas. This includes any type of documentation not covered by attorney-client privilege. "I had a case once where a nurse was upset after learning of a lawsuit and she went home and dictated a tape of everything she recalled, sort of to cover herself and get it all recorded. Once we learned of the tape's existence, we had to turn it over to the plaintiff," Stimmel says. "She later found out that a lot of what she said wasn't true, that she had misunderstood the actions of some people involved in the case, but she had to live with what she put on that tape. The hospital paid a lot of money to settle that case just because of that tape, and they didn't do anything wrong." Charles Holton, JD, an attorney with Womble Carlyle in Research Triangle Park, NC, also has seen physicians make notes summarizing their actions or adding additional details they recalled after the fact, sometimes even questioning their own decisions in the patient's care. "The doctor usually thinks these notes are just for his or her own use, but if they ever come to light, the plaintiff will find them useful," he says. "They're doing what comes naturally, jotting down some details while they still remember them, maybe second-guessing themselves about some decisions. But once it's on paper, it can be used against them." |
"Do not call the plaintiff or plaintiff's counsel. Anything you say can and will be used against you. No conversation or communication is off the record," she says. "Don't risk it, even if you believe that a phone call will clear up all the evident misunderstandings."
Stimmel agrees, saying risk managers and other parties often have a hard time avoiding the plaintiff, not wanting to appear rude when the patient or family member calls with a question. A key concern must be protecting the attorney-client privilege, she says. Most state laws hold that if you have a good-faith belief that a lawsuit will ensue, you can begin talking to those involved and have those communications be protected, Stimmel adds.
Stimmel also cautions against being too quick to write off a bill as a conciliatory gesture toward the patient who has made a claim or is threatening a lawsuit. While dismissing the bill can be a fine negotiating tactic or goodwill gesture, Stimmel says it can be misinterpreted if you are too hasty with that step. The plaintiff can see it as an admission of guilt and be urged on to pursue the legal case.
Risk managers can suggest to the clinicians involved that they start thinking about how they will describe their actions to the plaintiff's counsel, and they should consider how to explain medical issues to a layman. You can provide the clinicians with a copy of the medical record that documents their care, Holton says, but be careful not to suggest any deception or effort to mislead.
Immediately collect all paperwork, files, correspondence, bills, e-mails, invoices, and other material regarding the subject matter of the lawsuit, and the plaintiff or plaintiffs who filed the action. Store all such information in a readily accessible place to turn over to your attorney. Holton points out that you also must keep those records secure, and that the filing cabinet in your office may not do the job.
"These records can be of interest to a lot of people with a great deal to lose or to gain, depending on the outcome of the case, and alterations can be made," he says. "I think it's a good idea to secure the original chart and related records, in a secure way. You might want to consider storing them off site in a more secure place."
Employees also must be cautioned to never destroy electronic files or e-mail records, Holton says. Plaintiffs often request electronic records routinely, and any indication of deletions or alterations will prompt a more thorough electronic investigation.
"The way we see cases get compromised the most is when the records are not secured in the best way possible. Slides are not included, tissue samples were not examined, and evidence was just lost," he says. "That happens most when a case is brought years after the incident, and no one knew how important that material might be. When you have the ability to collect all this information, make sure you get everything. Don't leave anything out."
Sources
For more information on responding to claims and lawsuits, contact:
- Barbara A. Cotter, JD, Cook Brown, Sacramento, CA. Telephone: (916) 442-3100. E-mail: [email protected].
- Peter Hoffman, JD, Eckert Seamans, Philadelphia. Telephone: (215) 851-8420. E-mail: [email protected].
- Charles Holton, JD, Womble, Carlyle, Sandridge & Rice, Research Triangle Park, NC. Telephone: (919) 484-2309. E-mail: [email protected].
- Cecile M. Loidolt, JD, Meagher & Geer, Minne-apolis. Telephone: (612) 347-9108. E-mail: [email protected].
- Mina N. Sirkin, JD, LLM, Sirkin & Sirkin, Wood-land Hills, CA. Telephone: (818) 340-4479. E-mail: [email protected].
- Linda Stimmel, JD, Stewart & Stimmel LLP, Dallas, TX 75202. Telephone: (214) 752-2648. E-mail: [email protected].
- Dick Wiles, JD, Hiersche, Hayward, Drakeley & Urbach, Dallas-Ft. Worth, TX. Telephone: (972) 701-7091. E-mail: [email protected].
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