Page 34 - Anatomy of a Medical Malpractice Lawsuit

SVMIC Anatomy of a Medical Malpractice Lawsuit

Tempting as it may be to contact the patient or his or her

attorney in the hopes of explaining away the lawsuit, do not do
it. A physician should be extremely cautious when requesting

to speak to a plaintiff’s attorney. Similarly, patients tend to
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hear what they want to hear. And, in many states, they can
secretly record the conversation, which could appear

unfavorable for the physician if played in front of a jury.
Remember, the patient and the attorney have a vested

financial interest in the successful outcome of the

claim/lawsuit.

Another temptation when notice/suit papers are received is to
discuss the medicine and other pertinent facts of the case with

colleagues or others. Avoid this temptation as well. By talking
to colleagues, you are potentially making them witnesses when

they would otherwise not be involved. As will be discussed in
the next section on Discovery, the plaintiff’s attorney has the

right to inquire with whom you have discussed the facts of the

case and, unless that conversation is privileged, you must
answer truthfully or risk committing perjury. If you identify one

of your colleagues or anyone else for that matter, the plaintiff’s

attorney will likely subpoena that person to give a deposition.
That individual will not be happy and, if it’s a colleague and he

11 In one case, a physician was contacted pre-suit by a patient’s attorney who assured the physician
that he was “not the target” and just wanted to get a better understanding of what happened.
Despite warnings not to have a conversation with the attorney, the physician proceeded to do so
anyway hoping to place the blame on another provider. Ultimately, the patient’s attorney secretly
recorded the conversation, and the physician became the primary target when the lawsuit was filed.
The case had to be settled because the physician had admitted his own liability in the recorded
conversation. Plaintiffs’ attorneys are advocates for their clients, and you should seek the advice of
counsel when you have concerns about liability issues.

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