Medical Malpractice Defense

How attorneys help protect doctors.

It is very possible that a physician will be sued for malpractice at some stage of his or her medical career. During the course of a lawsuit there can be many personal, professional, financial, and legal issues to face. There are numerous articles, web sites and books offering valuable advice on how to survive a medical malpractice lawsuit. This article is intended to be a practical resource to help you navigate the best possible course through the uninvited and unwelcome process of malpractice litigation.

Before you are ever sued, it is a good idea to fully understand your malpractice insurance contract. If you don’t understand the language, which is often the case, contact your insurer for a detailed explanation.

If you receive any type of filed complaint, you should notify your insurance agent or the insurance company without delay. If you are with a self-insured group, you should immediately contact risk management. You should also mark your calendar to follow up and confirm the legal papers are being promptly handled by the insurance agent, insurance company, or risk management.

Do not depend on your office staff to properly manage the legal papers. You do not want to place these legal papers in the same stack as other reports and correspondence. Failure to properly respond to a civil complaint can result in a default judgment against you. In turn, this could cause your insurance company to refuse to defend you and decline to pay for any judgment. Furthermore, a default judgment means that you cannot even defend yourself on the issue of whether or not you did something wrong!

The reason why this review is important is because insurance contracts often require practitioners to take certain steps prior to the actual time that a lawsuit may be initiated. Depending on your policy, you may be required to contact your insurer when you first realize, either through personal knowledge or communications with third parties, that there may be a problem. If you don’t contact your insurer at that time, they may not be required to defend you should legal action occur. If you are uncertain whether you have a problem, seek advice from an attorney. Remember your communications with the attorney are confidential, but the fact that you contacted one could be used to show that you were aware of a possible problem. On the other hand, you don’t want to contact your insurer about every incident unless you believe that the standard of care has come into question. If you are not sure which direction to take, always choose the decision that will most protect you.

Normally, your insurance carrier will assign a defense attorney and you will have little or no influence. However, you may know a more experienced defense attorney in your area. If they are willing to work for your insurance company, your request to be represented by one of them may be considered by the insurance company.

You should hire your own personal attorney when it appears your case is going to trial and that there is a reasonable likelihood of a verdict in excess of your policy limits. In those cases, you should definitely hire your own personal attorney to review the case and make an independent determination as to your personal monetary exposure. You should also consider hiring a personal attorney if it appears that you are receiving ineffective assistance of counsel from the insurance company attorney and the adjuster refuses to allow you to change attorneys or if you need someone other than the insurance company’s retained attorney to negotiate with the insurer. If you are in a state like Florida where as a practitioner you are allowed to “go bare” it is imperative you enlist the aid of an attorney with experience in medical malpratice defense. Medical Malpractice defense requires a specific set of skills and knowledge that the average lawyer may not possess.

What you can do to prepare:

  • Be an expert about your case and the associated medical literature by the time of your trial.
  • Be the most knowledgeable person in the case regarding the medical records.
  • Identify an attorney you feel comfortable with, someone whose advice you respect.
  • Make sure your attorney spends all the time necessary in preparation for your deposition and trial testimony.
  • Strongly consider seeking emotional support from another physician who has been sued.
  • A malpractice suit is a very difficult emotional event for physicians—one of the deepest personal and professional threats you can experience. Be aware of its possible negative impact on your professional life and emotional health.

The most important thing to remember is that you should stay calm. More times than not, frivolous lawsuits are filed where there is no fault. It is an unfortunate reality that litigation against healthcare providers is now becoming a regular occurrence, but it is something that you can be ready for.

David Di Pietro is the founding partner of Di Pietro Law, P.A. in Fort Lauderdale, Florida. Fort Lauderdale medical malpratice attorney David Di Pietro is a former prosecutor and handles all medical malpratice matters. The Fort Lauderdale medical malpratice law firm of Di Pietro Law, P.A. is located at the Legacy Bank Building, 12 SE 7th Street, Suite 608 Fort Lauderdale, FL 33301. Telephone: 954.712.3070. http://www.ddpalaw.com.

The information in this article site was developed by Di Pietro Law, P.A. for informational purposes only and should not be considered legal advice. The transmission and receipt of information from this article does not form or constitute an attorney-client relationship with Di Pietro Law, P.A. Persons receiving the information from this article should not act upon the information provided without seeking professional legal counsel.