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AAOS Now

Published 10/1/2011
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David D. Teuscher, MD; Douglas W. Lundy, MD

You’ve been sued: Tips for defendant doctors

A lawsuit won’t go away—but here’s how you can deal with it

You were out in the garage packing implants for a medical mission trip to Kenya when the deputy drove up to serve you with the complaint. (This actually happened.) Immediately, your entire world turned upside-down. The normal homeostasis of your life shattered. You can’t think, your mouth is dry, your palms are sweaty, and closing your eyes doesn’t make it any better. Your shame races to the conclusion that you can’t tell anyone about this.

You go from being in control of your life to being at someone else’s beck and call as you respond to summonses, requests for records, and deposition appointments. You start to experience an emotional overload, as you go from extreme nerves to rage to feeling demoralized and harassed.

Studies show that 95 percent of physicians who have been sued experience cognitive brain malfunction. As a result, you should expect a negative impact on your clinical performance. Your family will be affected more than you can imagine. But you should not let the filing of a lawsuit beat you, because you have faced much greater adversity in simply getting through the rigors of your training.

The greatest tragedy that could occur is for you to lose the ones you love the most due to the strain of this litigation. Whatever you do in this circumstance, ensure that you take specific measures to strengthen the bonds of your family and those closest to you.

What will you do next?
You can’t just hope and pray it will go away, or ignore it, or bury yourself in your work, or keep it to yourself, or refuse to meet with counsel and rely on others to defend you. None of these actions will make the lawsuit go away, and a couple of them will adversely affect your family, friends, office staff, and patients.

Unfortunately, we have seen physicians behave in this manner after being served with a medical negligence suit. This is exactly the wrong approach and places all that you care about in peril. Worse, it unilaterally disarms you from engaging in a vigorous defense when you must actively concentrate on the fight at hand. It is absolutely essential to immediately develop a positive attitude and focus on winning.

One of the first things that you need to do is admit that you have been sued. If you’ve never been sued, this is much harder than you might think. You should strongly consider easing up on your work schedule and commitments outside of your family. It is essential that you discuss your feelings with your attorney and get permission to talk to select others about how you feel. Under the rules of discovery, certain conversations that you have with others may be admissible in court. Your attorney can help you erect an emotional component to your defense.

To manage the stress of the situation, you’ll need a team. It is most important to maintain open communication with your spouse and family—even beyond what you had before you were served. They can feel the change in your emotional balance and can be stabilizers in your hour of need. An orthopaedic colleague or trusted friend can also be beneficial, as long as you only discuss subjects that are acceptable to your attorney.

Both your spiritual advisor and your personal physician can be great sources of counsel and comfort, and your conversations with them may be protected. You need to develop a trusting relationship with your attorney, because open communication is absolutely essential to your successful defense.

A positive frame of mind is also essential. Denial and delay are your enemies. You must learn how to embrace your temporary “new normal.” The lawsuit will be over—someday. It may take years to resolve, but someday it will be over. As the defendant physician, you can’t help but take this assault as personal, but to the plaintiff’s attorney and others, it’s just “business.”

Prepare your best defense
The very day you are served with a lawsuit, you should notify your medical liability insurance carrier. Although you may prefer and request a specific attorney, the company may recommend someone else, based on their familiarity with the best medical negligence defense attorneys in the area.

After notifying your carrier, pull and preserve the entire file and related materials. Even if you find something that you do not like, something you don’t agree with, or something that is factually incorrect, do not destroy or alter the record. You will be able to amend and correct the record, but you should not do it without the advice of counsel.

Gather all the records and thoroughly review them. Identify and critique pertinent literature that either supports or potentially condemns your treatment. Because you are familiar with the issues, provide your counsel with potential orthopaedic experts whose expert opinions may support your case.

Schedule time with your counsel as soon as you have read the record. Educate and assist your counsel with experts and learned treatises. Make time for quality interaction with your attorney. Meetings with your attorney should be treated as really important … because they are! Even if you have to cancel certain responsibilities in the office, the operating room, or the emergency department, do not skip this step. If you do, your defense will suffer greatly.

The records
When it comes to knowing the facts in this case, you must “own the record” by memory. Be able to quote all important circumstances without referring to the records. Take notes and tab or highlight any areas that you may need to refer to or to quote directly. Your attorney, who will want to present the case, will assist you with this. You have the easy job of just answering the questions.

Remember, the plaintiff had a unique orthopaedic experience and will have a precise and repeatable memory of it, often with emotions that may sway the jury. Since the time of the case in question, you have seen, cared for, and performed surgery on many patients. Although this may have been a routine procedure, juries will not be impressed if you treat this patient and his or her situation as just routine. You will have personal recollections and insight on the matter that no one else could possibly have, so be prepared to share them if your attorney deems it appropriate.

Now comes time to hire the best expert witness in the world, you. But first, you need to go back to school to research the scientific literature, and then you must identify other potential expert witnesses—topics we’ll cover in the next installment.

David D. Teuscher, MD, is chair of the AAOS Board of Councilors. He can be reached at sportdoctor@gt.rr.com

Douglas W. Lundy, MD, chairs the AAOS Medical Liability Committee. He can be reached at LundyDW@resurgens.com

You be the judge
Weigh in on this month’s Orthopaedic Risk Manager article by Drs. Teuscher and Lundy. Send your responses to
feedback-orm@aaos.org

  1. “Studies show that 95% of physicians who have been sued experience cognitive brain malfunction.” Have you or your colleagues experienced such dysfunction, adversely affecting your professional/personal lives and/or your own defense preparation?
  2. Would an emotional support system have been helpful?

Editor’s note: This is the first of a two-part series on the personal response and effective strategies to serving as your own expert witness when sued for professional negligence. Part 2 will discuss the deposition, how you can be your own best expert and a resource to your attorney, and winning strategies for your defense.