Early and Effective Steps to Take in Defending Against Liability Claims

By: John L.A. Lyddane
Thursday, April 18, 2013

As medical care providers, you are repeatedly advised of potential liability concerns. You are asked to report events that may presage a liability claim and even how the claim might be resolved. But what about the claim that comes well after the treatment is concluded and without any event or warning? Your initial response will influence the outcome of that case, and you should know how to respond effectively.    

First, do not respond to the attorney who sent the summons or claim letter. Instead, immediately notify by telephone, followed by written confirmation, every insurance carrier who could conceivably be interested in the case, including your primary and every excess professional liability carrier and, potentially, general liability insurers, hospital risk management programs and administrators of pharmaceutical trials, to name a few. References to medical malpractice in the papers received do not necessarily exclude other types of claims. For example, a patient who fell in your office may raise premises liability claims. The effect of notifying uninvolved insurers is negligible, but failing to notify an involved carrier can void the coverage. Be liberal in deciding whom to notify and do so without delay!

Second, the patient’s records will determine many technical points and perhaps the ultimate resolution of the claim. Neither a medical practitioner nor the office staff can possibly predict which records will be needed to defend the claim. Consequently, legible copies of both sides of every page of the chart must be provided to the primary insurer and directly to defense counsel at the outset. The attorney may find a technical defense that can end the case months before the first deposition is scheduled. Prescriptions, telephone messages, thank you notes, lab slips and scheduling notes in patients’ charts each have provided a fortunate practitioner’s early exit from a complicated liability case. Do not deny yourself this option.   

Third, the records should be secured even if the patient is expected to return. Records of past treatment obviously cannot be corrected, improved or otherwise altered, as this will inevitably be interpreted as an admission of guilt. Do not allow the chart to be accessed without making your staff aware of the litigation and that every chart entry will be scrutinized. If the patient returns after suing you (as many do), do not hesitate to request the names of other providers the patient is seeing, as well as document the patient’s physical examination. Do not discuss the pending case or the underlying treatment. If you feel the threatened or pending lawsuit is influencing your judgment or that the patient’s intent is to plant information in the chart or revive the statute of limitations, you may decline to see the patient with an appropriate referral to another provider.

Fourth, what might be important to your defense but not reflected in your chart? Prescription copies may be available from the patient’s pharmacy. Logs from your telephone answering service, your telephone bills and other collateral records may be available when a new lawsuit is instituted but will not be available if first considered on the eve of trial. If specific instances of patient noncompliance (or an informed consent) were witnessed by office employees, ask for a one-page account of what they recall before they relocate or their memory of the instances fades.

Fifth, do not discuss the claim with anyone except your defense team. Communications to your attorneys are privileged, but statements bearing on the treatment made to other persons are not. You and anyone else not covered by a privilege can be required to testify to such statements. Finally, obtain an attorney with experience trying the type of case involved. You wouldn’t necessarily go to your local cardiologist for a catheterization or stent placement. By the same token, not every attorney has the experience necessary to represent you properly after you have followed these steps.

John L.A. Lyddane is a senior trial partner at Martin Clearwater & Bell LLP. For more information, visit 
www.mcblaw.com.