Medical professional liability litigation can be a daunting and complicated process for healthcare providers. It’s crucial for those internally handling legal claims in healthcare facilities to understand the steps involved and respond effectively. Being proactive and precise in the litigation process and empathetic with involved healthcare providers can improve the chances of a favorable outcome.
Pre-suit Investigation & Work-up
When a potential legal issue arises, prompt and thoughtful action is essential. Early indicators may include:
- Medical records requests
- Subpoenas
- Letters of investigation (e.g., from state licensing boards)
- Law firm tracking
- Notices of intent to sue or investigate
- Complaints to regulatory agencies (e.g., CMS, The Joint Commission, DNV, state office of quality)
Upon learning of a potential or actual legal action, take the following steps:
- Notify legal counsel and your insurer immediately. Inform internal personnel as appropriate.
- Secure medical records and prevent unauthorized access. Each record view is logged and discoverable.
- Instruct defendants and witnesses to speak only with their attorney(s), insurer or risk manager on the matter.
- Tell defendants and witnesses to they are not to create independent documentation or conduct personal research related to the incident.
- Secure all relevant materials, including medical records, incident reports, emails, photos, videos, texts and even sticky notes. Once a legal claim or preservation of evidence letter is received, collaborate with legal counsel for advice on what needs to be secured. Proper handling at this stage is critical to avoid spoilation of evidence consequences.
Deadlines matter. Once a Complaint is filed and served, the clock starts. While the typical response window is around 28 days, this varies by jurisdiction. Notify your attorney and insurer promptly, and ensure all named defendants are informed.
Discovery Process
Discovery is the stage when both sides gather case-related information. You can expect to see different types of requests and examinations, some of which are listed below:
- Interrogatories and document requests: Written questions and requests for relevant materials. Keep detailed records of what is provided or withheld.
- Requests for admissions and depositions: Request for Admissions confirm or deny specific facts in writing, while depositions involve sworn oral testimony.
- Expert witnesses and medical exams: Both sides will present expert witnesses1 (many times multiple) on standard of care, causation, damages and other complex issues. Independent medical exams (IMEs) may be ordered to assess injury claims.
Complexities of Co-Defendants
Cases involving multiple defendants, such as contracted nurses or independent physicians, require careful coordination. Each co-defendant should have separate insurance coverage and legal representation. Understanding the details of each co-defendant’s insurance is essential, as is reviewing any contracts between your facility and individual providers or group practices.
In most cases, your attorney will advise filing cross-claims against named co-defendants to preserve all possible defenses. Things can become more complicated when considering whether to bring an unnamed healthcare provider2 into the case through a third-party complaint. Bringing colleagues such as physicians into a lawsuit can create a delicate situation. It may be wise to ensure certain top leaders in your organization (i.e. Chief Executive Officer) are aware when a third-party complaint is about to be filed, so there is alignment with litigation strategy and no surprises.
Deposition Preparation
Depositions are critical for establishing credibility and facts. Proper preparation is key:
- Mock Sessions: Depending on the witness being deposed, up to several practice sessions may be needed with attorneys to ensure the witness is prepared. Reviewing strategies for answering questions, avoiding speculation, how to avoid implicating colleagues, and how not to portray oneself as an expert witness should be reviewed with each deponent.
- Execution & Review: Collaborate with attorneys and witnesses to ensure deposition transcripts are accurate and errata sheets are completed and affirmed in a timely fashion.
Mediation & Settlement
Many courts require mediation to explore settlement options. Approach mediation with openness and empathy as plaintiffs may be experiencing significant emotional distress.
Ensure the insurer or the person with settlement authority is present/available. Remember that the details of mediation are to be kept confidential.
Media & External Communication
In all cases, especially those that are high-profile, coordinate closely with legal and communications teams to manage external messaging. Ensure HIPAA compliance and protect privacy.
It’s recommended to prepare a professional public statement in advance if needed. Additionally, it’s important to provide just-in-time and regular reminders to employees about media and privacy policies. There should be no unauthorized comments or social media engagement related to the matter.
Supporting Your Team
Litigation can be emotionally challenging for healthcare providers. Feelings of guilt, fear, inadequacy and anxiety are common. Your support at this time is crucial.
- Connect in person. While electronic communication is efficient, face-to-face meetings offer meaningful support.
- Be mindful of timing. Avoid scheduling litigation-related meetings during clinical shifts. Expecting a defendant clinician to provide patient care before or after meetings related to litigation is not ideal, as the provider may find such discussions mentally and emotionally upsetting and exhausting.
- Consider a peer support program. If you do not already have a peer program in place, consider establishing one. Pairing clinicians with peers who’ve already been through the litigation process can provide confidential support, guidance and reassurance.
Business Continuity
Make sure you have a contingency plan in your absence. Relying on one person for litigation knowledge can lead to errors. Train backup personnel to:
- Accept service of Complaints only for your employees. Be sure anyone who receives service checks all names in the caption of the Complaint to verify who is an employee versus who is an independent contractor/non-employee.
- Notify the correct attorney and insurer immediately so no important deadlines are missed.
- Instruct defendants and witnesses not to: (1) access the medical record, (2) speak to each other or anyone else about the lawsuit (or underlying facts that serve the basis of the lawsuit) and (3) perform research.
Reach Out to an Advisor
Navigating medical professional liability litigation requires a proactive, informed and compassionate approach. From early investigation through resolution, having the right guidance can make all the difference.
For personalized support and strategic insight, connect with a Clinical Risk advisor today.
1 In rare instances expert witnesses may not be required if the legal principle of res ipsa loquitur (the thing speaks for itself) applies. The concept of implied negligence can vary by state, with some states providing specific examples (e.g. surgery on the wrong patient or body part, foreign object left in patient after surgery).
2 Be sure to review the terms of your insurance policy to determine if your organization has a choice of whether a third-party complaint may or may not be filed.