Anyone who has ever been served a malpractice claim knows how very frightening the experience can be. From that moment you suffer enormous anxiety until, and even beyond, the ultimate resolution of your case. When a subpoena strikes, many people wish they had a lawyer in the family, but few are so fortunate. However, there is one way that every physician can be armed in advance for what these days is an almost inevitable experience: Get a map.
How to Survive a Medical Malpractice Lawsuit: The Doctor’s Roadmap for Success (Wiley, 2010) by Dr. Ilene Brenner, is one of the best books I have read on the subject. As a litigation specialist, I’ve read more than my share in this genre and put this volume in a class with the excellent, if under-utilized, Adverse Events, Stress and Litigation, by Sara Charles and Paul Frisch (Oxford, 2005). Both books have as principal authors, physicians who have been directly harmed by malpractice litigation. What distinguishes these two from others on the topic is that these authors have transcended the experience and are able to dispense a wealth of practical advice untainted by rancor.
Dr. Brenner is an EP and child of a med-mal defense attorney, so her writing reflects a lifetime of vicarious experiences. Dr. Charles, on the other hand, is a psychiatrist and well-known authority on the phenomenon of malpractice litigation stress. It’s no surprise, then, that Brenner focuses on the practical approach to litigation while Charles attends more to physicians’ emotional needs. Brenner does not ignore the psychology – with a degree in the subject herself she aptly devotes an entire chapter to the topic. But the vast majority of the book – 9 chapters – comprises a syllogistic explanation of the process of litigation, along with a comprehensive guide through the legal maze for the uninitiated. She carefully explains steps to take, issues to address and pitfalls to avoid in order to successfully negotiate the perilous litigation journey. Especially valuable is her advice regarding conflict of interest and selection of an attorney. Most physicians do not realize they can influence attorney selection. Brenner explains precisely when and why it is necessary to have separate representation, such as when you and the hospital are assigned the same attorney by a mutual carrier. Brenner details the methods of securing appropriate representation, including appeals, and other methods of influencing your carrier. Readers of EPM will recognize the sound and pithy advice Brenner dispenses about deposition and trial testimony, which merit close review prior to each such event. These sections and others in the first half of the book are exceptionally well written, specific and easy to follow.
The second half of the book is devoted to a practical discussion of preventive measures and reduction of overall risk of malpractice claims. The book contains an excellent appendix of state laws relating to expert witness requirements, alternative dispute resolution mechanisms, and collateral source rules, followed by a comprehensive glossary of legal terms of art. In addition, there is a very short synopsis of all chapters at the end that is such an excellent tool it’s practically worth keeping in your pocket.
The weaknesses of Dr. Brenner’s book are few in relation to its many strengths. Several sweeping statements about the law or the requirements of insurors seem to be based on the author’s experience in only one or a few states or insurors. Some are in need of revision or correction. As an example, the precautionary statement is made that, outside of your attorney or spouse, anyone else you speak to about your case can be called or deposed as a witness. Actually, a deposition can be demanded of anyone whose testimony might shed light on a case (including, in fact, your spouse); however, such a demand would be successfully countered in any case where testimony from the deponent is privileged. In most states there are other protected categories of individuals beyond a spouse or attorney, such as your physician or counselor or clergy or trial consultant whose testimony would be privileged, even as regards the details of the case.
In contradistinction, Charles’ book emphasizes strongly the urgent emotional need for physicians in litigation to unburden themselves, and specifies those with whom such discussions are safe, (e.g. privileged) as outlined above.
Some of the wisest advice dispensed by Brenner concerns measures – like having your own separate malpractice policy with a consent-to-settle clause – that really must be taken in advance of any adverse event or claim. It will not help someone already embroiled in litigation to learn what steps they should have taken beforehand. Therefore, as with all risk management advice, readers would be well advised to read the second half of the book BEFORE they are sued.
Bottom line, since Brenner’s book is intended to be a roadmap, not a retrospective, physicians should actually read it before the spectre of malpractice raises its ugly head. And then, if and when litigation strikes, read it again. I would also strongly recommend that physicians get and keep Adverse Events for reference. When litigation or an untoward outcome strikes and you feel lost – which, in pursuit of our profession will inevitably happen – these two books will help guide you home.
7 Tips for Dealing with Malpractice Claims
1. Review your malpractice liability policy and secure your asset protection plan BEFORE you are sued!
2. Notify your carrier immediately in case of any known adverse outcome
3. If a claim occurs, speak to no one before you contact your insurer
4. Exercise your right to a competent attorney who represents only you
5. Recognize that malpractice litigation is a money game and not a competency hearing
6. Prepare for a very long haul by marshaling your resources and supports
7. Remember that the only physicians who are “safe” are those who never provide care