Even following the best practices, some patients will suffer adverse outcomes—and some of those patients will bring a lawsuit. Knowing that some of you either are defending claims against you or that you may have to defend a claim in the future, we wanted to provide you with a bit of practical advice that may ease the burden of litigation.
1) Engage: Many physicians want to put a lawsuit out of their mind and “let the lawyer handle it.” Just as a patient can’t cure a cancer by ignoring it, avoiding a lawsuit is not going to make it go away.
While much of the legal work takes place on a day-to-day basis without your participation, you need to remember that this is your lawsuit, not your lawyer’s lawsuit. If you do not engage with your lawyer and help the lawyer shape the defense, your lawyer may end up presenting the wrong theories. More importantly, spending time with your lawyer will help them understand your personality and the way you interact with your patients. If your lawyer doesn’t know you very well, it’s very difficult for the lawyer to build rapport between you and the jurors, who ultimately will determine the outcome of the lawsuit.
2) Teach: Many defense lawyers have picked up a fair amount of medical knowledge during our careers, but few of us have practiced medicine. As you certainly know, the fact that your lawyer has read surgical textbooks doesn’t make them qualified to perform surgery.
Because you have cared for thousands of patients, you know more about your area of medical expertise than we can ever hope to gain in the course of defending a lawsuit. Teach us the medicine that will enable us to understand how and why you made important decisions while caring for the plaintiff. Ultimately, our success at trial depends on our ability to convince juries that your decisions were thoughtful and reasonable, but we can’t do that without your help.
3) Select: In almost every medical malpractice case, the parties will endorse physicians to provide the jury with expert testimony about the medical issues. These experts become important witnesses because they help the jury understand the relevant standards of care and determine whether an allegedly negligent act caused the plaintiff to suffer an injury.
You probably know the well-respected practitioners in your field who would make credible and persuasive witnesses. Help us identify them and persuade them to serve as experts on your behalf.
4) Prepare: During the course of a lawsuit, one of the most critical events is your deposition. During your deposition, the opposing lawyer will attempt to “lock you in” on the key issues in the case and prevent you from changing your testimony at the time of trial. Consequently, you have to be well prepared for your deposition, both in terms of knowing the facts of the plaintiff’s care (which may have been rendered several years earlier) and in knowing the medical principles that applied to the plaintiff’s care.
You must demand your lawyer adequately prepare you for the deposition by reviewing these matters and preparing you for the deposition process. You need to understand how lawyers frame questions in the hopes of obtaining responses that will come back to haunt you. If you haven’t devoted the time and energy necessary for you to understand and feel comfortable with the process before sitting down for the deposition, you’re in trouble.
5) Attend: Your deposition is the only event before trial that you legally are required to attend. As a defendant, however, you have a right to attend any other deposition that takes place before trial, including the deposition of the plaintiffs and the opposing experts.