Medical Economics Special Section: Malpractice: Are you making your case worse?

September 15, 2007

Why some doctors lose malpractice cases they should have won, and how to avoid those mistakes.

Key Points

Even for the best doctors, something may go wrong, and a patient sues. Perhaps you made a clinical or diagnostic error that caused a serious injury. But some doctors manage to sabotage their own defense by committing strategic errors after they've been sued, like trying to cover up a clinical error by "fixing" the medical record. (See "Malpractice Consult: Alter the records? Bad idea," in the May 18 issue of Medical Economics and at http://www.memag.com/.) They end up losing cases they otherwise might have won.

Here are some common ways that physician-defendants can thwart their own efforts, with advice from defense attorneys on how to avoid such self-inflicted damage.

If you fear you'll be sued, don't notify your insurer immediately.

Later, however, the family's attorney learned from the hospital record that the patient had actually suffered a fatal hemorrhage-not a heart attack. The attorney also discovered that because of the unusual death the county coroner had conducted an autopsy, which revealed that the real cause of death was a perforated artery. Furious at the surgeon's deception, the family sued him not only for negligence, but also for punitive damages based on his attempted cover-up.

The case against the surgeon was so strong that his carrier settled it rather than risk a huge judgment at trial. The doctor's malpractice policy covered the basic negligence claim, but like many policies, it didn't cover punitive damages for false statements. As a result, he ended up personally responsible for a sizable six-figure share of the settlement.

"The moral of this story," says Griffith, "is to notify your insurer promptly when something goes wrong, even if no claim has been filed yet. Let the carrier decide if it's appropriate to meet with the family, and what's permissible to tell them. And whatever you do, don't lie to them. If you do, and it comes out in court, the jury won't believe anything else you say."

Don't get your insurer's approval before discussing the case.

If a plaintiff's attorney demands a patient's records or wants to discuss the case, don't reply until you notify your insurer. The company will review the request, advise you how to respond, and appoint an attorney to represent you if a suit is filed. If you don't alert your carrier, and then provide information to the patient's attorney, the company could deny coverage if you're actually sued.

The plaintiff's attorney may request an "informal interview" or a "friendly chat," saying he wants to resolve the matter peacefully by giving you a chance to explain "what really happened." But, remember, the plaintiff's lawyer is not your friend, and anything you tell him he can use against you later in court.

Any deals you make during such informal meetings may also backfire, says Scott Einiger, a health-care attorney in New York City. For example, the plaintiff may offer to drop the suit if you compensate the patient for his injury or his medical expenses. (Such private payments need not be reported to the National Practitioner Data Bank.) As Einiger warns, however, "That payment can be used against you in court as an admission of negligence unless you get a written release from the lawyer stating that you won't be sued. That's something your assigned attorney should negotiate."