Sued? Don't gather information from others
Review only your care when you receive letter from attorney asking for patient's records
(Editor's Note: This is the second part of a two-part series on actions physicians should take after being named in a suit. This month we give recommendations for what information doctors should review. Last month, we covered why physicians should avoid placing blame on colleagues.)
Wasn't the anesthesiologist in the room when the bleeding started?" might be an innocent question asked by a physician named in a lawsuit to other staff who were in an operating room during a case. However, "it can look really bad, depending on the circumstances," says Norm Jeddeloh, JD, an attorney with Arnstein & Lehr in Chicago. "It may look like you are trying to create a story retrospectively, and that can be terribly damaging."
Similarly, it might look suspicious if a physician named in a suit asks a co-defendant, "Isn't it true that we responded immediately to that page?" when there's no documentation about it in the patient's chart.
David S. Waxman, JD, an attorney with Arnstein & Lehr, says, "When the other doctor recounts that conversation, it certainly makes it look like you were trying to rewrite history. You have to maintain your credibility at all points in the process. If it looks like you are trying to fudge the facts, you are in big trouble."
The initial reaction of physicians is to "get their arms around what led to the filing of a lawsuit," says Waxman. "Obviously, anything done outside the province of your counsel is subject to discovery. You don't want to give opportunities to the other side that they wouldn't otherwise have had."
Roger L. Hillman, JD, an attorney with Garvey Schubert Barer in Seattle, says that in his experience of defending physicians, not many can truthfully say they didn't speak to anyone else about the lawsuit. "The first thing that's going to be asked at your deposition is, 'Did you talk to anybody about the case?' And every name you give them, they are going to depose," he warns. For this reason, Hillman says to avoid discussing the case as soon as you receive a letter from an attorney asking for a patient's records.
"Virtually every healthcare provider who is sued thinks, 'If I could just get them to understand what happened, they will go away.' That's not going to happen," says Hillman. "The more you explain, the more ammunition you give them." To avoid problems:
• Review the patient's chart.
Documented records are likely to be the most accurate source of what happened and often are the most important evidence that's presented, says Jeddeloh. "A judge once told me he didn't care what people testified to. He wanted to see what the documents said," he recalls.
• Review only your involvement in the patient's care.
Even if you only saw a patient the first two days after he or she was admitted, it might seem logical to also review the remaining eight days of hospitalization. "But if you review that, it's then fair game for the plaintiff attorney to ask you about it, even though it wasn't care you were involved in," explains Waxman. "There is no reason to subject yourself to unnecessary questioning."
Limiting your review only to what you said and did is a lot easier to deal with, he explains. "If you educate yourself on a much bigger picture, you expose yourself to issues that you otherwise would not be exposed to," says Waxman. "You have made your situation much more difficult than it needs to be."
• Avoid researching issues in the lawsuit before your deposition.
Because you can be deposed about this research, it's better to recommend research that your attorney can perform on the various issues involved in the case, says Waxman.
"If you do it yourself, it may tip off the other side to your thought process or something they hadn't even considered," he explains. "If your attorney does it, that's privileged, and [the opposing attorney] will never know about it."
Sources
For more information on communicating with others during litigation, contact:
- Roger L. Hillman, JD, Garvey Schubert Barer, Seattle. Phone (206) 816-1402. Fax: (206) 464-0125. Email: [email protected].
- Norm Jeddeloh, JD, Arnstein & Lehr, Chicago. Email: [email protected].
- David S. Waxman, JD, Arnstein & Lehr, Chicago. Phone: (312) 876-7867. Fax: (312) 876-0288. Email: [email protected].
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