How to Stay Out of Litigation

Taking responsibility doesn’t mean admitting that you were negligent. It does mean acknowledging a complication when it occurs and assisting the patient in minimizing the consequences. Sometimes this will result in transferring the patient to another physician. At other times, the physician may have to pay to correct the mistake. Many medical malpractice insurance carriers now have programs targeted at promptly recognizing and reacting to unexpected outcomes. These insurers realize that the best time to correct a bad situation is within hours or days of its occurrence. Enlist the help of your insurer or hospital risk manager. If patients feel like their physicians are trying to minimize a situation, hoping mistakenly that it will go away, it becomes much more difficult to avoid litigation.

10) Don’t compromise your integrity: Physicians are professionals. Whether it’s fair or not, jurors hold physicians to a higher standard of conduct. They expect more of doctors. They expect doctors to “do the right thing.” Consequently, jurors tend to punish physicians who place their personal interests above their patients’ interests. Federal law already prohibits physicians from engaging in many forms of self-dealing, such as investing in certain businesses or receiving kickbacks for medical care. But there are many lawful forms of conduct that might cause a jury to question why a physician chose a particular course of action.

Recent medical literature demonstrates that pharmaceutical manufacturers direct 90% of an estimated $21 billion annual marketing budget at physicians, including the sponsorship of an estimated 300,000 annual education events. This amounts to approximately $13,000 per physician annually. Because of concerns that even small inducements might have an unwanted effect upon physician independence, the Stanford Medical Center recently announced a new policy prohibiting physicians from accepting free drug samples or even small gifts from pharmaceutical sales representatives. Prominent newspapers have been running stories about the “free lunches” physicians receive.

We’re not suggesting that physicians spurn pharmaceutical sales representatives or that they avoid legal business opportunities. We caution you, however, that smart plaintiffs’ attorneys are sensitive to any indications that a physician has allowed his interests to influence a patient’s treatment. Don’t put yourself in a position where a jury could reasonably question whether or not you had your patient’s best interests in mind.

Unfortunately, even if a physician observes all of these precautions, a patient still might file a lawsuit. If you sense a real potential for litigation, contact your insurance company and provide notice of a potential claim. This will help ensure that your insurance coverage is available if a lawsuit is filed. It also allows the insurance company to retain an attorney to assist you. The next time we write, we’ll provide our top tips for winning a lawsuit once it occurs. TH

Patrick O’Rourke is the managing associate university counsel for the University of Colorado’s litigation office. Kari M. Hershey, JD, practices health law in Colorado.