Lessons Learned From Litigation

An Unwelcome Initiation Rite

Louise B. Andrew, MD, JD

Disclosures

June 01, 2021

I had the "interesting" experience of being sued during my first few months as an attending at JohnS Hopkins' Baltimore City Hospitals, by the family of a patient I had never seen. A "phone book/billboard lawyer" represented the plaintiff, and I learned about the case from his reporter/shill at the Baltimore Sun. As acting director of the emergency department, I was the administrative supervisor of the resident who treated the patient but was asked by the defense attorney to be an (unpaid) expert witness because I was one of the earliest board-certified emergency physicians in the United States.

Seeing no evidence of negligence in the medical record, I agreed. I was not given any preparation for my first deposition and innocently took my well-organized files with me. The plaintiff attorney, angered by my unyielding responses, demanded to see my copy of the chart, which contained my signature. (His copy did not. I sat on the Medical Records Committee and suspect that our clerk might have accidentally miscopied that corner.) The irate lawyer immediately and gleefully made me an additional defendant.

Although the case settled for a nominal sum, I had to deal for several years with all the stresses of litigation, and then throughout my career with re-reporting the painful episode to licensing agencies and credentialing bodies. There was, I realized, a pressing need to educate physicians about the hidden rules of law, including the technicalities that brought my first suit. I earned a legal degree, partly in self-defense and partly to better position myself to be an educator and counselor to physicians, an avocation I have pursued throughout my career.

Earliest lessons learned:

1. Lawyers can always hurt you because they know the rules of the game and you do not. So learn the rules or find a tutor.

2. Lawyers can be your salvation — if you get one who is skilled and also empathic (or at least skilled). You do have some choice. (More about this in a forthcoming post.)

3. Always insist on separate legal representation for any malpractice case in which you might be a defendant. Otherwise, fiduciary lines get muddled.

4. Never take anything besides a lawyer to a deposition.

Many of my other early lessons you probably have learned by now, but some have been misstated by well-intentioned risk managers over the years.

5. Don't speak to the plaintiff or their agent unless your insurer or employer arranges for a negotiation process such as a Disclosure, Apology, and Offer program.

6. Don't discuss details of the case with your immediate professional colleagues. However, you may urgently need to share your feelings about being sued with someone with whom you feel comfortable. You may safely discuss even the details of the case (always respecting patient privacy) with certain individuals, such as your spouse, physician, attorney, or counselor (including a psychological or spiritual counselor), all of whom are protected by legal privileges against discovery.

7. Don't alter the medical record in any way. (It's remarkable that this even occurs anymore, but it was once common.) At the same time, don't believe anyone who tells you, "If it isn't documented, it wasn't done!" which is an easily provable lie. More about this will follow in a future post.

8. Do keep your own copies of the medical record from the moment you learn of the case, annotated with any separate recollections you may have, labeled "confidential attorney correspondence." (Of course, share them with your attorney, redact identifying information, and keep safely confidential.)

9. Don't allow a colleague to be an expert witness unless they are the best authority out there and had absolutely no connection with the case. More about expert witnesses later.

10. Do insist on adequate preparation by your lawyer before any appearance, in any capacity. If you feel unprepared, ask for more time or for a consultant.

Perhaps the most important lesson:

11. Do remember that despite protestations to the contrary, the outcome of a malpractice claim is almost never a reflection on your worth as a person or as a physician, but rather on an unfortunate alignment of holes in our system of care, or on the financial or retribution needs of the patient/family or/and on your personal vulnerability based on specialty choice, practice setting, or communication style.

These are considerations that you can work to change after you have survived your case, but your most pressing mission is to keep yourself from losing the dedication and joy that brought you into our noble profession. This bump in your career path is a perfectly predictable part of practicing medicine in the US today. Your colleagues and your patients, not to mention your loved ones, need you to remain a healthy and still empathic practicing physician for as long as you can do so.

Ultimately, I had a number of such "interesting" learning experiences in my practice lifetime. Litigation stress management was just the first lesson (admittedly my reaction was a tad extreme), with later experiences touching on unethical expert witnesses, second/first/third victim syndromes, minority physician discrimination, physician "burnout," wellness, depression, suicide prevention, disability, and ageism. Most recently, the intersections of such issues with regulatory board practices have all captured my attention.

Come back to this space to share learnings in areas crucial to physicians' survival. Although partially retired, I remain dedicated to the proposition that ours is a species well worth preserving.

Please comment here and also share your ideas for future posts with me at Medscapementor@gmail.com.

Follow Medscape on Facebook, Twitter, Instagram, and YouTube

About Dr Louise Andrew
Louise B. Andrew, MD, JD, is a fifth-generation physician/attorney and a leader in the American College of Emergency Physicians and, recently, the American Medical Association. She cofounded a number of physician service organizations and has received numerous national and international awards. Throughout her career in emergency medicine and since, she has maintained MDMentor.com and Black-Bile.com, websites supporting physicians. She teaches, counsels, testifies, and mediates for physicians, hospitals, and others on aspects of physician wellness, behavior, litigation and regulatory stress management, medical expert witness issues, disability, and physician suicide prevention.

Comments

3090D553-9492-4563-8681-AD288FA52ACE
Comments on Medscape are moderated and should be professional in tone and on topic. You must declare any conflicts of interest related to your comments and responses. Please see our Commenting Guide for further information. We reserve the right to remove posts at our sole discretion.
Post as:

processing....