Litigation Hassles

In Florida's litigious climate, medical malpractice lawsuits may very well become a cost of doing business for physicians. Nonetheless, there are a number of things physicians can do to defray the emotional costs the legal system can inflict.

Even if you never have been through the process of having yourself scrutinized and your records poured over by attorneys and plaintiff's experts, it is a healthy exercise to try to imagine what sort of criticisms they would have.

Keep in mind the purpose of orderly and complete patient records. If your partner cannot read your illegible scribbling, how can you in good conscience rely upon him to assume the care of your patient? Even if he can read it, your patient's records may be sent out to a consultant. If you have not bothered to record, in a legible fashion, all of the material pertinent to the patient's care and treatment, you are leaving yourself open to criticism.

Beyond having a legible and complete office chart, there are a number of other records that need to be maintained. Of­fice calendars can be very useful in documenting canceled appointments by the patient. Similarly, telephone logs of incoming and outgoing calls, if dutifully kept in the course of your business, can often go a long way toward refuting a charge down the road. Personnel schedules can also help you document the office staff that would have been on duty to either take those phone calls or assist in the treatment of the patient.

It is prudent to keep a list of any publications you may have authored or presentations you may have participated in. These, along with any seminars you may have attended, could help accentuate your expertise if you ever find yourself in a courtroom.

The most important aspect of document preservation is that changes or additions should never be made once you have been notified that litigation is going to ensue from your care and treatment. Any additions to the charts prior to this should be signed and dated and any corrections should not obliterate the original entry.

If you suspect that your care and treat­ment may result in litigation, notify your insurance carrier. You will have to use your own judgment as to whether or not a request for medical records from your patient's attorney is cause for suspicion, but, in an abundance of caution, it is advised that this is a prudent time to put your carrier on notice of a potential claim. Make your best efforts to critically evaluate your care and treatment for the carrier. The carrier, in turn, most likely will ask for a copy of your office chart so that it can begin an investigation.

If your first notice of the litigation is the letter from the plaintiff's attorney indicating your patient's intent to initiate litigation you will want to forward this immediately. Your receipt of the documents triggers a 90-day period during which both sides have a statutory obligation to fully investigate the claim. If you are dilatory in forwarding the notice to your carrier and your delays compromise any of the carrier's potential defenses to the claim, conceivably this could impact your coverage.

Pre-Suit period

There is much to be done during the 90-day pre-suit period. If the date of the incident is after February of 1988, your insurance carrier or your attorney must get the records reviewed and an affidavit drafted and signed by an expert supportive of your care and treatment before he can even deny the claim. As you can well imagine, this takes time.

If the plaintiff's attorney so desires, you also may be asked to sit for an informal statement. For all intents and purposes, this will seem like a deposition, although what you say during the pre-suit period is neither admissible nor discoverable in any litigation that might ensue. Even though the statement is not admissible, it is advisable that you have an attorney present for the statement.

Since current Florida law requires plaintiff's counsel to have an affidavit critical of you before he can file the notice of intent, chances are that suit is going to be filed, and you will be giving a deposition on the record and under oath sometime in the very near future. Therefore, you should look at the pre-suit statement as something of a trial run and an invaluable preparation for the upcoming deposition. This requires some work on your part in that you need to familiarize yourself with your involvement in a relatively short period of time, but the rewards will be evident.

Once you suspect that you may be involved in a lawsuit, it is important that you greatly curtail your conversations about the patient and your care and treatment of the patient. Conversations are generally privileged if they are pertinent to the patient's care and treatment, but once the patient has left your care and litigation is anticipated, the intent of these conversations can be easily misconstrued by a jury. This is particularly true with regard to a physician's discussions of the case with his office staff. This is not to say that it is ill-advised to ask your nurses and receptionist what they remember about the patient. However, the conversations should go no further than that. It goes without saying that you should not attempt to talk to the patient at this stage nor should you converse with the plaintiff's counsel unless you have your insurance carrier or your attorney present.

You also may get a call about this time from a representative of Florida's Department of Professional Regulation. These investigators may request time to sit down and discuss the case. Keep in mind that they have been provided with the notice of intent and the affidavit corroborating the allegation that there are reasonable grounds to bring a negligence action against you. Therefore, legal representation is recommended at this initial conference, as well.

Next month we will cover the anatomy of a lawsuit and what you can do to assist in your own defense. The statistics are overwhelming that, despite your best intentions, you will not escape this life unscathed by the medical malpractice combine.