You've Been Sured for Medical Malpractice

It’s one of the moments physicians dread most: a formal legal complaint from a patient. During a somber presentation, Edward Zurad, MD, a Pennsylvania-based family practitioner, walked a terse, attentive audience through the minefield that is medical malpractice litigation in this country in his session, “You’ve Been Sued for Medical Malpractice. Now What?”

One of the first mistakes physicians make in defending themselves from litigation happens right off the bat. According to Zurad, when physicians first realize they are being sued for malpractice, they feel “shame, anger, depression, a loss of control, and a crisis of confidence.” Many mistakenly put off reading the complaint, when instead what they should do, according to Zurad, is read through it three times immediately to get the full picture of what has been alleged. Then, you should try to remember as many details as you can about the incident in question and make notes for yourself.

“Review your pertinent medical records,” advised Zurad. “And have a transcript of your records and any notes transcribed. All of this is protected by attorney-client privilege.”

Among the many wise tenets Zurad espoused were the following tidbits:

• Take the deposition as seriously as if you were at trial. Deposition testimony is often used in the actual trial, and it will be difficult to explain discrepancies and maintain your credibility.
• Never adjust or alter your records in any way. “If you do this,” Zurad said, “there is no phoenix coming out of those ashes. Technological advances will discover an alteration after the fact.
• Make note of your demeanor during interrogation. “Are you likeable?” asks Zurad. “Or are you a jerk? Are you compassionate? Do you seem calm and collected?” If not, the plaintiff’s attorney may be scoring points with a jury, or painting you as frazzled.
• Have your attorney conduct mock trials with you, honing in on difficult questions that will surely be raised.
• Never answer the question, “Knowing what you know now, what would you have done differently?”

Zurad closed the session by presenting difficult questions that skilled plaintiffs’ attorneys will ask, including using phrasing like, “What did you do when it became clear that…” He advised avoiding speculation about what you would do when giving different information, and using caution about throwing co-defendants under the bus.

Most important in a situation involving malpractice litigation, Zurad stressed, was for physicians to assert some control over the process if possible. “You’re used to being in control,” he said, and you’ll feel less stressed and depressed the more you know about the case against you and your own defense.