Tuesday, June 23, 2009

Commenting on WhiteCoat's Blog Parts 1&2

I am soon to publish a book this fall with Wiley-Blackwell entitled "How to Survive a Medical Malpractice Lawsuit." I also write for the same magazine, www.epmonthly.com as has the WhiteCoat Blog. WhiteCoat is currently (bravely) blogging about his lawsuit experiences. He brings up a number of important issues that I think should be further pointed out, so the readers get the best value out of his experiences. I've run this idea by WhiteCoat and have been given the okay to go ahead.

Part 1:

There was one comment that I was afraid could be taken out of context by a plaintiff's attorney in a future lawsuit: "I ordered more tests than I probably needed to." But I'm not going to go crazy on this point. I'm not writing this to criticize WhiteCoat, but to offer a learning opportunity to other docs.

Important issues requiring further input:
  1. Re: Medical Records "Do I look that dumb to make a change in the records now?" Apparently doctors are that dumb and do it all the time. Never remove or change any records (beyond the approved methods of a one line crossout that is initialed, timed, and dated). You think you won't get caught. But you will. In ways you never conceived of. And it will ruin your case.
  2. Re: Looking up information "Once I had read the chart, I felt the need to validate the care I provided." This is totally understandable. And you should not do it. In Part 2, Vinny, WhiteCoat's attorney, makes this point, but by then it is too late. Now that the doctor has looked up information, the plaintiff's attorney has an easier time making it look like an authoritative source that can be used against him at trial. This is a key point. Once you are sued, do not look up anything until you've met with your attorney (at that point it is attorney-client privilege).
  3. "I notified the group I was working for at the time and they notified our insurer." When you get sued, you should contact the insurer yourself. It is okay to notify the group, however, in all likelihood, they already know as they were probably named in the lawsuit as well. Thus there could be a conflict of interest between you and your employer-now co-defendant. If you have an attorney, you can have them contact your insurer. However, letting the group take care of this can lead to bad habits where you don't take control over your case and let your employer make decisions for you that may or may not be in your best interest (that you might have the power to make yourself).

Part 2:

Important Issues:
  1. "I checked the attorney out..." Excellent! Most doctors don't evaluate their assigned attorney. They don't realize that there may be reasons why you don't want that particular attorney or lawfirm. How do you evaluate your attorney? It is a difficult question, much like asking to evaluate a doctor. I have an article I wrote at www.epmonthly.com about that (if it is not archived "How to choose an attorney" then email logan at lplaster@epmontly.com for a copy). I've also written a whole chapter on that in my book. In brief, asking peers as WhiteCoat did is a good start. Martindale is of questionable value. Do they settle a lot of cases or take them to trial? Are they a senior partner - usually defense attorneys make partner by winning lots of cases. However, I would like to point out, while WhiteCoat was concerned about the attorney being an expert in complex cases, this is a good thing. You want someone who is very experienced. You want a "big gun." You should be concerned if they hand you an attorney who only works on easy, simple cases.
  2. Advice Vinny gave to WhiteCoat is spot-on and people should pay attention.
  3. "Vinny's firm and the insurance company contacted me with the name of an expert that they had chose to review the case." Please note that sometimes insurance companies (on big cases or via standard random sampling) will have an in-house expert review. This usually doesn't happen on all cases, though perhaps there are some insurance companies that do. This "expert" is very different from the expert you choose to represent you at trial. These in-house docs are usually not actively practicing and often don't have credentials that are ideal for your particular case. They are there to give the insurance company an idea of whether they should settle the case or not. Realize that if you have it in your policy that you must give your CONSENT TO SETTLE, the insurance company can't settle unless you agree (Please find out if you have this and try to get it in your policy if you don't). No matter what the review says. If you have that clause in there, don't let yourself be bullied into settling a winnable case (i.e. your experienced attorney says it is winnable). Of course, there are other mitigating factors such as a verdict that could go over your policy limits. However, in general, settling is losing since you end up in the National Practitioner Data Bank. You should try to take most cases to trial. That being said, if you cannot get an expert to stand up for your care in court, you will have to settle.
  4. "But before the insurance company would consult another expert, I had to agree to abide by whatever opinion the expert rendered." I agree that WhiteCoat should have insisted on another expert, however, he should not have agreed to abiding by the second opinion. Unless it is explicitly stated in your policy, your insurance company is obligated to get the opinions of multiple experts as part of the normal review process. If multiple experts with proper qualifications say the same thing, as I mentioned above, you should consider settling. Otherwise, don't let you insurance company bully you into giving up rights that you have.
To be continued...

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