Actions after suit may worsen physician's woes
If you learn you are named in a lawsuit, your first impulse is likely to be accessing the patient's medical record.
"Even though you will be extremely curious and concerned, you should not access the patient's file, especially if it is in electronic form," advises Stephen W. Coles, JD, an attorney with Nexsen Pruet in Greensboro, NC.
Electronic medical records keep track of who accesses the records and when, and a physician does not want to leave an audit trail that shows multiple viewings of electronic records, he explains. "It is preferable to wait for your attorney to become involved before you access the records," he says. "You can then access the records at his direction. Such action would be protected from discovery because it involves legal advice and work product."
A good plaintiff's lawyer will ask you about all the things you did when you first found out about the lawsuit, and you will be under oath and have to respond honestly and fully, warns Coles. Take these steps if named in a lawsuit:
• If a patient has a paper chart, lock it up or put it someplace secure.
"If you get an attorney, it is preferable to get it to the attorney as soon as possible so that no allegations can be made that the chart was altered in any way," Coles says.
• Never alter the chart in any way.
"This is true even if you find mistakes when you go back to the chart," Coles says. "If and when the case ever goes to trial, altering the records can cause a catastrophe."
• You should not discuss the case with anyone except your professional liability carrier and your attorney.
"Initially, it is advisable not to talk to family, even spouses," Coles says. "The same holds true for your partners."
You can tell them you have been sued and by whom, but do not talk to them about details until an attorney is retained and conversations can be protected from discovery due to attorney/client privilege and the work product rule, he advises.
"Remember, if the plaintiff finds out you said anything to others, that can be used at trial," Coles says. "Do not make any notes or diary of events until you are represented by counsel."
• Never contact the patient or family members.
This advice applies in every single circumstance, even if you believe that family members might be on your side.
"Never try to talk to people in an effort to sway their opinion about what did or did not happen," says Coles.
Source
For more information on actions to take after being named in a lawsuit, contact:
- Stephen W. Coles, JD, Nexsen Pruet, Greensboro, NC. Phone: (336) 387-5130. Fax: (336) 387-8909. Email: [email protected].
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