Risk Management

If You Are Accused of Medical Malpractice…

 Digest, Winter, 1991

In the unlikely event that you are named as a defendant in a claim, you will be instructed not to make any deletions, corrections or additions to the record and to keep the original office record in a safe and secure place. If you receive a request for medical records from an attorney, OMIC recommends that you cooperate and release the records, but only if there is a properly executed letter from the patient authorizing you to do so. Release of records may be discussed with a claims representative by calling 1-800-562-6642. In addition, it is recommended that you not discuss aspects of the case with anyone and refer all inquiries on the matter to OMIC. The American Academy of Ophthalmology in 1988 published a list of Dos and Don’ts if you are sued for malpractice. It is reprinted below for your convenience.

1. Don’t panic! Of course this is an emotionally unsettling experience. Do keep your sense of perspective. A recent assessment indicates that the frequency of malpractice claims increased from 10.5 claims per 100 physicians in 1980 to 17.8 claims per 100 in 1986. Of these, the number of cases which eventually went to trial was very small, in the range of less than 4% of 8,965 closed claims reported by a major medical malpractice insurance carrier.1
2. Don’t alter, amplify, or in any other way try to change your medical records. Efforts to do this can easily be detected and lead to indefensibility even in cases where the physician is blameless.
3. Do immediately notify your malpractice insurance carrier at the first signal that a claim may be made.
4. If you have specific questions about your liability exposure or your best course of action, do ask your malpractice insurance carrier to refer you to an attorney.
5. Don’t talk to the plaintiff (former patient) or plaintiff’s attorney about any aspects of the case under any circumstances. They are now your adversaries and anything you say will be used against you. It is futile to speak to them thinking that you will persuade them not to proceed with the suit (once it is already filed).
6. If a claim seems likely, don’t investigate the medical literature before conferring with your defense attorney. Such investigation can bring unfavorable literature into evidence in your case.
7. Don’t talk or write about the case with other physicians, your office staff or acquaintances. They really aren’t too interested in the specific 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 then be called to testify.
8. Do speak to colleagues in medicine 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 from within your family, church, and friends.

Notes:

1. Charles SC, Pyskoty CE, and Nelson A. Physicians on Trial – Self-Reported Reactions to Malpractice Trials. Western Journal of Medicine. 1988; 148:358-360.