Advice needed for malpractice suit

[ctt209]

Hi everyone, I don't usually post, just lurk on the forum mostly, but i really need some advice/guidance regarding a malpractice suit situation.

Without getting into specifics, I found out recently a former patient's family filed a suit against me (in a non-tort reform state).

I used to work for a hospital system, and had recently changed jobs. From talking to the lawyer that I was assigned to by the hospital's insurance company, both I and the hospital was named in the suit. This lawyer is now representing both me and the hospital.

Obviously I've been pretty stressed from hearing the news, but it's also hard to ask for advice (which to me is the killer part of this) from colleagues since technically I'm not supposed to mention this to anyone other than my spouse and lawyer for fear of roping anyone else into the suit as a witness.So what I've been doing instead is reading books including the book "how to survive a medical malpractice lawsuit" by ilene brenner.

My question to you guys from reading the book is it seems it's a bad idea to have both the hospital and I be represented by the same lawyer as it might create a conflict of interest scenario and make it more likely for them to settle on the best interest of the hospital. From what my lawyer tells me, I don't have the right to refuse settlement if that's what their medical expert deems as the best course of action. The one thing I did read in the book is that if you feel as if your interests aren't being represented, you can appeal the insurer to get a new lawyer to represent you on the basis of conflict of interest. I broached this topic with one of the lawyers of the insurance company and she said that if further down the line I feel this way, it can be something to discuss but usually it's not looked upon well in terms of dealing with the plantiff's side because "you want to present a united front." I don't know how any of you guys feel about this arrangement, from what they're telling me it seems pretty standard to have the md and hospital be represented together, but the books I'm reading are telling me it's dangerous to just "go with the flow" so to speak. I have my first sit down meeting with my lawyer next week, but figured I'd ask for advice here, since I'm actually pretty scared/anxious about this whole thing. I don't want to make waves and piss off my lawyer and defense team from the start, but i dont' want to be the patsy either, since at the end of the day it's my record/reputation that's on the line.

Any sage advice is desperately welcomed! Thanks in advance.

[Jackmomma]

first of all sorry to hear this. almost all doctors at some point get something like this at some point in their career. the thing you need to remember is you will in almost all likelihood be fine, learn from this, survive, and move on. very few cases go to trial, many get dismissed outright.

in hospital based cases yes the hospital and physicians will tend to be aligned together in defense. unless you feel the hospital did something really different than what you had done, e.g. you ordered something to be done but the hospital refused., Example : MD really wanted an MRI done. The hospital dragged their feet or said no has to be done outpatient. Pt leaves goes home and as it turns out MRI should have been done because now there was a bad event that happened that could have been prevented if test was done.

i would recommend meeting with the lawyer and hearing out the details. things are very early right now.

your job should be to get all the records and write out very very clear notes about what you did in the case.

do you mind sharing general details of what the lawsuit is about clinically?

[ctt209]

So some background, I'm outpt only primary care. So in my case the hospital was only named because i was an employee, it wasn't like I was the hospitalist and I did something the hospital didn't want/agree with.

Without getting into too much specifics, it was for a delayed cancer diagnosis in an eldery pt. (not a cancer that would be caught by routine screening guidelines). But from my view pt, pt had no symptoms/no lab abnormalities the last time i saw him. I saw the pt for a routine visit a year before the cancer caused symptoms.

 

I have some of my notes but not my labs and telephone encounters, I'll def be trying to get those.

[wonka31]

Sounds like a weak case from what you describe.

[ctt209]

yeah I think so, but my fear is that since the lawyer is representing both hospital and me that they'd prioritize "getting it over with" as opposed to fighting it. thus i wanted to ask you guys to see if usually in such cases if it's standard to just have same representation or if even early on in the case i should make a stink to have seperate representation

[artemis]

I suspect you will eventually be dropped from the case, given that the patient was completely asymptomatic and all reasonable labs were negative at the time of your contact with him/her.  Try not to worry too much.

[Dreamgiver]

Nah the hospital will not want to 'get it over with'. If it is truly meritless they will fight.

[jbmitt]

ctt209 wrote:

I have some of my notes but not my labs and telephone encounters, I’ll def be trying to get those.

Click to expand...

I would caution you on doing anything with this until you meet with the defense counsel.

It is normal to want to revisit a situation based on a suit to personally determine whether there is merit to the claim or not.  Everything has already happened and it is the attorney's responsibility to defend your actions.  I don't speak as a physician or as an attorney, I am neither.  My wife is a physician and in a previous career I worked for an insurance company handling litigated claims and was personally deposed.  In the preparation for my deposition, my defense attorney didn't want me consulting my previous files and notes because it would have made me more familiar with the events, when I could not otherwise recall specific details and answered only as I remembered under oath.  This was part of their strategy to not offer my personal analysis of anything that was provided in discovery.  The plaintiff had to attempt to prove their arguments and the case was eventually dismissed.

My wife has also been named and dismissed from suits related to medicine.  I wouldn't worry too much about it.  I think it is great that you are learning about the process, but make sure you have a dialogue and pose your questions to counsel.  We had instances in insurance where a policyholder's interests weren't aligned with the company's or vice versa and each had their own firm or attorney that worked jointly in the defense.  As the insurance company, we often paid for both attorneys.  I believe that attorneys have an obligation to disclose that.  If it gets really hairy, you could bring in your own attorney but it could potentially be at your expense.  I'd inquire about that if they are suggesting a settlement that you don't agree with or if it is heading to trial.  Does your med mal coverage not have a consent to settlement clause?  Many policies do, but employed systems may vary.

Good luck.

[ctt209]

jbmitt wrote:

ctt209 wrote:

I have some of my notes but not my labs and telephone encounters, I’ll def be trying to get those.

Click to expand…

I would caution you on doing anything with this until you meet with the defense counsel.

It is normal to want to revisit a situation based on a suit to personally determine whether there is merit to the claim or not.  Everything has already happened and it is the attorney’s responsibility to defend your actions.  I don’t speak as a physician or as an attorney, I am neither.  My wife is a physician and in a previous career I worked for an insurance company handling litigated claims and was personally deposed.  In the preparation for my deposition, my defense attorney didn’t want me consulting my previous files and notes because it would have made me more familiar with the events, when I could not otherwise recall specific details and answered only as I remembered under oath.  This was part of their strategy to not offer my personal analysis of anything that was provided in discovery.  The plaintiff had to attempt to prove their arguments and the case was eventually dismissed.

My wife has also been named and dismissed from suits related to medicine.  I wouldn’t worry too much about it.  I think it is great that you are learning about the process, but make sure you have a dialogue and pose your questions to counsel.  We had instances in insurance where a policyholder’s interests weren’t aligned with the company’s or vice versa and each had their own firm or attorney that worked jointly in the defense.  As the insurance company, we often paid for both attorneys.  I believe that attorneys have an obligation to disclose that.  If it gets really hairy, you could bring in your own attorney but it could potentially be at your expense.  I’d inquire about that if they are suggesting a settlement that you don’t agree with or if it is heading to trial.  Does your med mal coverage not have a consent to settlement clause?  Many policies do, but employed systems may vary.

Good luck.

Click to expand...

thanks for the advice, I don't have consent to settlement clause (meaning they can force a settlement without my agreement).

I guess I'm just paranoid that from reading these malpractice books, it literally focuses chapters on how your own hospital's counsel can throw you under the bus without any warning. So that's why I wanted to see what the general consensus/experience was from people who have actually gone through this process. Whether my fear is founded or not.

I actually discussed the issue of reviewing my notes/chart before the deposition with the lawyer, and he didn't think there was any issue with it...so i'm not too sure what to make of that.

[FunkDoc83]

Like others have mentioned, sorry you have to go through this.  If you have any older partners or docs in your group, I would encourage you to talk with them.  Likely one or more of them have already been through this and they can give you an idea of what to expect.  You can't talk specifics with them, but letting them know you are going through a malpractice suit is not against the rules.  From the brief information you've provided, it does sound like there was not grievous malpractice, and you certainly have a chance of this being dropped eventually.  My other advice to you would be to understand this process may take years before it is completed and it is not good for your mental health to fret and worry about this every day or week throughout the process.  It also sounds like you've been in contact with your lawyer, so don't be afraid to contact them for updates or anything at all really.  Lastly, if you are angry at the patient or their family, let it go because this is not personal, and you have to keep your emotions in check.  These malpractice suits are mostly about $, and because you have malpractice insurance, it's not your money on the line.  Reach out from time to time if you need some encouragement, I know their are plenty of folks on the forum that would be happy to be a sound board for you.  Good luck.

[Hatton]

Of course you will consult your notes prior to a deposition.  It sounds like preliminary fact finding.  You are a long way from a deposition.  If conflicts start arising you should insist on your own lawyer.  Hopefully you and the hospital will be on the same page.  I doubt the hospital will want to settle something like this.

[jbmitt]

ctt209 wrote:

I guess I’m just paranoid that from reading these malpractice books, it literally focuses chapters on how your own hospital’s counsel can throw you under the bus without any warning. So that’s why I wanted to see what the general consensus/experience was from people who have actually gone through this process. Whether my fear is founded or not.

Click to expand...

Is the suit being handled internally by your hospital's own attorneys/risk management or was that just an initial consultation as a result of the suit being filed?  Oftentimes the hospital's in-house counsel will accept service and do the preliminary work in referring it out to the insurer or defense firm that handles on behalf of the hospital.

The answers could depend based on who you're talking to.  In-house counsel often handles transactional and administrative stuff and works with whoever may be used for litigation.  It would seem like a huge conflict of interest if the hospital's own attorneys were defending themselves and/or you.

[ctt209]

jbmitt wrote:

ctt209 wrote:

I guess I’m just paranoid that from reading these malpractice books, it literally focuses chapters on how your own hospital’s counsel can throw you under the bus without any warning. So that’s why I wanted to see what the general consensus/experience was from people who have actually gone through this process. Whether my fear is founded or not.

Click to expand…

Is the suit being handled internally by your hospital’s own attorneys/risk management or was that just an initial consultation as a result of the suit being filed?  Oftentimes the hospital’s in-house counsel will accept service and do the preliminary work in referring it out to the insurer or defense firm that handles on behalf of the hospital.

The answers could depend based on who you’re talking to.  In-house counsel often handles transactional and administrative stuff and works with whoever may be used for litigation.  It would seem like a huge conflict of interest if the hospital’s own attorneys were defending themselves and/or you.

Click to expand...

Hi, the suit is handled by a outside lawfirm (who represents the hospital and I). It's not the hospital's own lawyers/risk management team....I agree that situation would be a huge conflict of interest!

[ctt209]

I guess part of my frustration is that I've always took the time to talk to the patient and his family. After labs were done I'd call the HCP to discuss the labs, and there was never any bad interactions and they always seemed appreciative... So this has taken me quite by surprise and really has shaken me in terms of my faith in my fellow man and makes me want to just become financially independent as fast as possible and quit the field so that I won't have to go through something like this again. (I've realized I've gotten quite risk adverse as I get older lol).

Another annoying aspect of this is because of the suit, I can't apply for a mortgage as the lenders want the suit to be resolved before they approve me of a loan.

[artemis]

ctt209 wrote:

I guess part of my frustration is that I’ve always took the time to talk to the patient and his family. After labs were done I’d call the HCP to discuss the labs, and there was never any bad interactions and they always seemed appreciative… So this has taken me quite by surprise and really has shaken me in terms of my faith in my fellow man and makes me want to just become financially independent as fast as possible and quit the field so that I won’t have to go through something like this again. (I’ve realized I’ve gotten quite risk adverse as I get older lol).

Click to expand...

That's a perfectly normal response to being named in a suit.  One thing that's never mentioned outright during our training is that even practicing medicine perfectly is no protection from being named in a malpractice suit.  And it's normal to feel that you're being "punished" for nothing, since you made no error.  It can help a bit if you understand that SOP for the plaintiff's attorney is to name absolutely everyone connected to the patient, even tangentially, when the suit is initially filed and then to sequentially drop the less-involved providers from the lawsuit as more information becomes available to the attorney.

ctt209 wrote:

Another annoying aspect of this is because of the suit, I can’t apply for a mortgage as the lenders want the suit to be resolved before they approve me of a loan.

Click to expand...

That IS annoying, and unfair since there's virtually no chance of a payout (should one be made in your case, which is unlikely in the extreme) exceeding your policy's limits.  But there's nothing you can do about it.  Just keep saving up an even bigger down payment, and keep your fingers crossed you'll be dropped from the suit fairly quickly.