Eight Ways to Cope with a Malpractice Lawsuit

[Editor's Note - the management and staff of "The Cheerful Oncologist, Inc." wish to remind the gentle reader that the following comments are only meant to be general guidelines on how to cope with a malpractice lawsuit. No matter what he implies, the C. O. is not only completely unqualified to give out legal advice, he is in fact still on the lam from a slew of parking tickets acquired during his college days, thereby making him a fugitive from both justice and humility.]

Always one to kibitz, I was hit this weekend with the notion of giving out a bit of highly biased advice on how to cope with the stress of being named in a malpractice lawsuit. The tips below are meant mainly for physicians, but I suppose they would apply to nurses and other professionals in the health care industry, too. Realizing that there are numerous places one can get this type of information, I have decided to add my own opinion mainly in the spirit of encouragement, so that no matter what the outcome, those who are now post-lawsuit will hopefully be able to continue their career without bitterness. My advice does not apply to criminals, sadists, shirkers or ignoramuses - you all are hopeless.

1. Be Prepared. Practice your craft not just with skill, but with complete documentation such that anyone who stepped in for you tomorrow would be able to carry on just by reading your notes. If you say something important, write it into the record. Don't assume that you will retire without ever being sued. When caring for the seriously ill, be on the lookout for the unexpected - it might just mean the difference between a good outcome and a bad one.

2. Control Your Emotions - if you've just been served with a supoena, try to keep it in perspective. Don't let the shock of the moment damage your overall commitment to serve. This advice is found in every guide to giving testimony - don't let the hurt of being sued interfere with your responsibility to provide an accurate account of what happened from your point of view. Do everything in your power to rid yourself of anger.

3. Learn the Facts - No matter how long it takes, or how many readings it takes, learn the facts of the case. This cannot be emphasized enough - if you don't know the details of what happened then how can you be expected to arrive at any credible conclusions?

4. Don't Try to Change the Past - I'm not referring to the written record - we all know that editing the record post hoc is a major, major no-no. I'm asking you to look hard at the outcome of the case and work backward from acceptance of this outcome. As you review the records, ask yourself what went wrong, and how could it have been prevented? This is what I call searching for the truth, and once you find it...

5. Let the Truth Be Your Guide - If you are convinced that the outcome was from an event that could not have been predicted, prevented or guaranteed to be successfully treated, then your task is to show others how and why you believe this to be the truth. Don't let hypothetical scenarios distract your absolute commitment to the truth of the matter.

6. Listen to Your Attorney - his or her job is to guide you through the legal process with every chance of successfully telling your side of the story. The attorney is your coach, so pay attention to his game plan.

7. Teach Your Attorney - he or she wants to know what the facts are, but rely on you to translate medicalese into English. Take all the time he asks for when reviewing the case. Never become frustrated when asked to go over the details again.

8. Learn the Rules of the Game - no matter how prepared you may be, no matter how well you have the facts of the case memorized, if you don't know how 'The Game' is played you will lessen your chance to provide confident and effective testimony. I've read depositions where the second question asked of the witness (after "state your name") was "What is your Social Security number?" and the witness blew his top. There are many guides available to teach you how to get through the traps and tricks of a deposition. They should be considered essential reading for the potential witness.