Risk Management

Dos and Don’ts Following Notice of a Claim

 By Jerome W. Bettman Sr., MD

Digest, Fall, 1995

A chilling letter arrives at your office:

Dear Doctor:

My client, who has been under your care for the past 10 months, has suffered loss of vision and pain in her right eye due to your neglect, improper therapy, and medical negligence. It might be possible to reach a settlement of this matter if you telephone my office promptly.

Very truly yours,

Plaintiff’s attorney

What should you do if you receive such a letter? First, do not go into shock. These allegations are probably not a reflection of your ability to practice ophthalmology or your character. You are one of a large group of ophthalmologists, the majority of whom are excellent practitioners, who have had a claim brought against them. Approximately one in six physicians are sued every year in this country. Among OMIC insureds, 6 to 7% will incur a claim over the next year.

Second, do not think that you are going to lose your life savings or that your children will not be able to attend college. The vast majority of claims against physicians never come to trial and those that do are usually won by the defense.

However, it is important to realize that certain imprudent actions by a physician after receiving notice of a claim may actually encourage a plaintiff’s attorney to proceed with a claim that otherwise might have been dropped, and it may make defense of the case more difficult.

Notify Your Insurance Carrier

The most important first step you can take is to contact your insurance carrier immediately. It is a good idea to make this contact even if there is only a threat of a claim. Your insurance company will not penalize you for this; in fact, all carriers encourage their insureds to contact them early so they can provide advice and support. Speak to your carrier’s attorney or claims agent; their advice and services can be invaluable.

If and when a lawsuit is filed, your carrier will be responsible for assigning a medical malpractice defense attorney to your case. Upon reporting a claim or lawsuit to OMIC or your carrier, insureds will be asked to forward a complete copy of the patient’s medical record. This is necessary so the records can be reviewed to determine if there is any basis to the patient’s claims.

Do not discuss any aspect of the case with anyone other than a representative of the carrier or, if a law firm has been assigned to handle the matter, to the attorney representing you.

Do not contact the patient’s attorney. If an attorney representing the patient attempts to contact you, refer him or her to your insurance carrier. The attorney knows what he or she wants; you do not. Do not contact the patient. After a formal claim is filed, the patient becomes a legal adversary. If the patient contacts you, the best approach is to simply state in a friendly manner that in light of the fact that a claim has been made, your attorney advises you not to discuss the case. The patient might even request that you proceed with his or her care. It is probably better to decline, although there are some defense attorneys who believe that continuing the physician-patient relationship can be advantageous. The better decision, however, is to offer to give the patient the names of other ophthalmologists who can provide care and to make a summary of the patient’s records available to the new ophthalmologist upon proper request.

If you must discuss the case with subsequent or current treating physicians, limit your discussions to the medical facts surrounding the patient’s care and treatment, and refrain from discussing any medical-legal issues.

Never Alter the Medical Record

The plaintiff’s attorney no doubt will request a copy of your records. It is mandatory that you comply with this request, but be sure that you have the patient’s signed permission to release the records. Take the records out of the file yourself and go through them to be certain no extraneous material is included. Maintain, absolutely, the integrity of the patient’s medical record. Under no circumstances should you alter the records in any way. Even though you might think that a change made in the most skillful manner will not be detected, it will be. Most records have been copied previously for insurance purposes. If the plaintiff’s attorney gets a copy of these original records and can prove that the records were later altered, you will most certainly lose your case.1

After the record has been copied for the plaintiff, start a new one. Keep the original record in a safe and secure location. Do not place correspondence from OMIC or your attorney in the patient’s medical record. Start a legal file which you maintain separately from the medical record.

Do not investigate the medical literature relevant to this case unless advised to do so by your attorney. Such an investigation can bring unfavorable literature into evidence. An article or book may state something favorable to your case on one page but something unfavorable on another page. Literature is considered hearsay in the law and is not admitted into evidence unless you refer to it. You will probably be asked by the opposing attorney what literature you have read in conjunction with the case.

Do not talk or write about the case to other physicians, your office staff, or acquaintances. They really are not that interested in the specifics of the case, and if the matter does come to trial, there is potential embarrassment if you have to admit that you discussed it with third parties who may be called to testify.

Seek Support for Malpractice Stress Syndrome

Do speak to medical colleagues and others who are significant figures in your life about the stress you are feeling if you perceive that you are emotionally troubled by the suit. This is a time to benefit from sources of support within your family, church, and friends.2 A malpractice stress syndrome has been recognized. Defendant physicians may develop a negative self-image, feel misunderstood, or have decreased self-confidence. A lawsuit has great emotional impact, and the physician may experience anger, tension, depression, irritability, insomnia, decreased appetite, and difficulty in concentration. In some areas of the country, self-help groups have been organized for physicians involved in litigation. The sharing of experiences with others who have been involved in suits can be helpful.3

OMIC’s claims staff works closely with insureds during the course of a claim or lawsuit. Insureds are encouraged to contact their OMIC claims representative if they have any questions or need assistance. Additional support and guidance during this trying time can be found in the recently published Litigation Handbook for The Ophthalmologist. Jointly created by OMIC Claims Committee members and defense attorneys, this booklet gives a comprehensive overview of the litigation process. A complimentary booklet is sent to OMIC insureds who incur a lawsuit or who request a copy. Others may obtain the booklet by contacting the OMIC Risk Management Department at 800-562-4652. The cost is $10 for members of the American Academy of Ophthalmology and $15 for nonmembers.

Notes:

Bettman JW and Demorest BH. Practice Without Malpractice in Ophthalmology. Ophthalmic Mutual Insurance Co., San Francisco. 1995: 73-76.

Anderson RL. Discovery and Deposition, in Bettman & Tennenhouse (eds.), Medicolegal Aspects of Ophthalmology. Int. Ophthal. Clinics: Little, Brown & Co., Boston. Winter 1980: 68-69.

Richards B. Doctors Seek Crackdown on Colleagues Paid for Testimony in Malpractice Suits. Wall Street Journal. Nov. 2, 1988: B1.