Get A Headstart On Critical Medico-Legal Lessons

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From parsing out your insurance coverage to practicing depositions, there are concrete ways for residents to prepare for the legal challenges of practicing emergency medicine.

Like most emergency medicine physicians, I learned about malpractice lawsuits the hard way. Three colleagues and I were sued in the case of a patient with a MRSA infection who died. Completely unaware of the malpractice litigation process, and absolutely convinced we had delivered the appropriate care, I persuaded my colleagues not to settle.

The trial was an eye-opening and humbling experience, to say the least. We lost, faced a $1 million judgement, and one of the physicians – who took the majority of the blame – quit the practice as a result.

I was so shaken that I found myself at work the next day, functioning far less productively than my norm and ordering far more tests than I ever would have in the past. Thankfully, a mentor talked me through the rest of that shift, I took a week off work, and then came back to my job with a mission – to learn everything I could about malpractice and teach my partners so we could manage our risk and survive the cases that came our way.

Now, as the clinical leader in my 2,000-physician group, I continue to educate my colleagues. I also deliver monthly lectures to the residents from area medical schools at Integris Southwest Medical Center in Oklahoma City, Oklahoma, about problems to anticipate in the journey to becoming an attending physician. Because after the emergency department rotations, off service rotations, lecture, journal club and toxicology, there is no time left for residents to learn about the “real world” of emergency medicine practice. And too many residents march blithely unaware into a practice fraught with unanticipated hazards.

Of course, without dedicated instruction or first-hand experience, we can’t expect residents to know what constitutes malpractice or what the litigation process is like. That’s why I dedicate some of my time to giving lectures on topics like malpractice, where we cover issues such as insurance policies, the litigation process and available resources for support.

Insurance
Most of us get our malpractice insurance through our employers, and we spend little if any time understanding our policies. That is, until we are sued. This can be a very big problem.

A lot of physicians don’t know that some policies don’t provide “tail coverage” for suits that are filed after you change jobs. And in those instances, you may have to pay a significant amount of money out of pocket – up to three times your policy’s annual premium – to make sure you’re protected against suits from former patients. It’s important to know, up front, if your policy doesn’t include tail coverage so you can save that money in advance.

Some policies don’t require the physician’s consent when deciding to settle or litigate a case – putting you at the mercy of the insurance company.

Further, all policies have limits on what the insurance company will pay for a judgment or settlement. Though most doctors never bump up against those limits, if there are multiple cases in a year – or you have a case that exceeds your policy limits – there may be significant out-of-pocket costs.

Litigation
Given the fast-moving nature of our work, emergency medicine physicians tend to prefer quick resolutions to problems. And civil court cases are anything but quick.

Not only can these cases last for months, but most physicians facing their first suit don’t realize sworn testimony is the only permitted evidence. So even when you’re certain you provided great care, the plaintiffs can find an “expert witness” to say otherwise. And often the only chance to give your side of the story is in the deposition – where there’s no judge, a few lawyers, a camera, and a verbal and mental chess game that can go on for hours in an effort to trip you up.

Resources
One particular challenge for physicians is the prohibition on discussing a case with anyone but their lawyer or spouse. One thing to look for when selecting a position is whether the practice or malpractice policy offered by the group offers litigation support, which often includes counseling and the opportunity to talk with other physicians in a legally protected environment.

In addition, many attorneys can provide deposition preparation but don’t think to offer it. This is an incredibly useful service that helps you can understand what tactics to expect from the questioning attorneys and how to best defend yourself. Personally, I’ve had about 60 hours of deposition preparation.

So my advice to all emergency medicine residents and young attendings is to seek out educational opportunities to prepare for the “real world” of emergency medicine practice. On malpractice in particular:

  • Read and understand your malpractice insurance policy. Talk to your employer about it and, if applicable, ask them to include certain provisions – like tail coverage – explicitly in your employment contract so there is no question about what’s covered and what’s not.
  • Find out if litigation support is available to you.
  • Talk to your experienced colleagues about the evolution of malpractice cases so you have at least a general understanding of what you might expect if you are sued.
  • If you face a lawsuit, ask your attorney for deposition preparation.

And to all those physicians who are “seasoned,” like me, by hard won experience: Share your stories. Talk to the young attendings who join your practice. Find out where they could benefit from your knowledge and experience outside of the science and medicine. You will make a difference.

ABOUT THE AUTHOR

Robert Frantz, MD is the president of the TeamHealth Emergency Medicine West Group.

3 Comments

  1. Rhone D'Errico MSN FNP-BC on

    I especially liked the part about depositions being a “mental chess game.” They are just that, and a good prep by your attorney is essential, as you note. Great article, would be equally useful for APCs and RNs as well!

  2. Helpful and well written article. I also provide litigation stress counseling and deposition and testimony preparation for several insurers and privately via MDMentor.com. And absolutely EVERYONE should read Charles and Frisch “Adverse Events, Stress and Litigation” at the start of residency and periodically throughout their career, as a form of immunization against what Frantz (and most of us at some point will or have) experienced.

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