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I'm Being Sued for Medical Malpractice — What Should I Do?

Healthcare and Law concept, Medical malpractice, personal injury lawyer. Medical professional being sued for malpractice

If you’ve been served with papers in a medical malpractice suit, you are very far from being alone. Malpractice claims aren’t isolated to physicians only; they can be made against any healthcare professional. In fact, 52% of medical malpractice claims directly implicate nurses as one of the alleged responsible parties.

What’s more, the American Medical Association (AMA) reports that the great majority of plaintiffs who bring medical malpractice claims do not win their cases. And no matter whether you win or lose (though winning feels a whole lot better), the cost of the legal expertise and court expenses adds up, which is why one of the first things you will need to do is contact your medical malpractice insurance provider.

I’m going to discuss a lot in this article — from research I’ve collected to legal advice I would give a healthcare professional client. You’ll learn the background of medical malpractice cases, statistics on the top med mal claims, and steps to take if you’ve been named in a claim. If you’re panicking, just scroll down to the section that you need first. And remember, this is what your insurance company is for, and they should be a great place to lean on for more questions and your concerns. Read on to learn more!

What Is Medical Malpractice?

The American Board of Professional Liability Attorneys (ABPLA) defines medical malpractice as an occurrence in which “a hospital, doctor or other health care professional, through a negligent act or omission, causes an injury to a patient.” The ABPLA notes that this negligence can be “the result of errors in diagnosis, treatment, aftercare or health management.” Basically, medical malpractice is what happens if you make a mistake that harms a patient.

Legally, the ABPLA states that a successful medical malpractice claim proves three key elements:

  1. A violation of the standard of care: The law acknowledges that there are certain medical standards that are recognized by the profession as acceptable medical treatments by reasonably prudent healthcare professionals under like or similar circumstances. This is known as the “standard of care.” It means that a patient has the right to expect that healthcare professionals will deliver care consistent with these standards. If it’s determined that the standard of care has not been met, then negligence may be established.
  2. The negligence caused harm: For a medical malpractice claim to be valid, it is not sufficient that a healthcare professional simply violated the standard of care. The plaintiff must also prove that the negligence caused an injury. If there is an injury without negligence (e.g., a patient’s condition worsens but there was no allegation that the treatment was substandard), it’s not malpractice. Likewise, if there is negligence without an injury (e.g., a nurse fails to document a patient’s medications according to hospital procedure, but the patient suffered no injury), there is no malpractice.
  3. The injury resulted in damages: Medical malpractice lawsuits are extremely expensive to litigate (meaning, to argue in front of a judge or jury). They frequently require testimony of numerous medical experts as well as countless hours of legal research and interviews. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery.

Find out what to do if you are being called on to be a witness in a trial

Who Can Be Sued for Medical Malpractice?

Anyone involved in patient care can be sued for medical malpractice. This includes physicians, of course, but also extends to physician assistants, nurses, nurse practitioners, occupational therapists, mental health professionals, and other healthcare providers, as well as hospitals and even pharmaceutical companies.

What to Do After a Medical Malpractice Claim Is Filed Against You

Step 1: Try to stay calm. As upsetting as your situation is, you gain nothing from catastrophizing it. The result is far from a foregone conclusion, you have expert help, and panicking will interfere with your ability to prepare for what’s ahead.

Step 2: Contact your insurer. You may have never had to think much about malpractice insurance before this. Consider your coverage: do you have your own insurance, or is your insurance provided through your employer? If your insurance is provided through your employer, you may need to coordinate with your employer’s administrative offices to arrange for proper coverage of the claim. If you have your own policy, go online and learn how to file a claim. Can’t find it? Check to see if your policy details were emailed to you.

Step 3: Choose carefully who you talk to. Reach out only to those who can support you in some way and be trusted not to spread the word. Keep in mind that others you talk to who worked on the case might remember details differently than you do — which could cause more confusion and stress.

Step 4: Gather your notes. Get in the habit of writing down all your daily procedures, including actions you took during the course of care. Document as much as you can, and make sure your records are as accurate and complete as possible. Remember, once a provider has been notified that a lawsuit has been filed, it is too late to alter your notes in any way. The best thing to do is take complete and thorough notes during your daily practice.

Get tips on creating great medical notes on patients

Step 5: Speak with your attorney. Your medical malpractice insurance provider will assign you a lawyer to defend against the claim. While you likely will have little or no input on who your attorney will be, provide them with as much information as you can. Even if they are hired directly by your insurance company, their job is to help you defend the case against you. If you believe your attorney is incapable of representing you effectively, you may be able to receive a new attorney assignment from your insurance company. What you tell your attorney in confidence is protected by attorney - client privilege, a legal concept that prevents courts from ordering disclosure of that information to almost anyone, including the opposing party.

What NOT to Do After Finding Out You Are Being Sued

Just as important as taking the actions described above are not taking the ones in the list that follows:

  • Do not contact the patient, their family, or the patient’s attorney. Even if you believe you can reach an understanding with the patient or their representatives by explaining your point of view, after a lawsuit has been filed, you are required to avoid contact with the opposing party unless a court orders otherwise.
  • Do not rely solely on your employer to handle the claim against you. This includes your office’s administrative staff. Always double - check that you have seen all legal papers involved in your case, and remain in personal contact with your attorney and your insurance company representative.
  • Don’t alter medical records. Be careful with the patient’s medical records — don’t change or add anything unless you have first spoken with your attorney. There are instances in which you may be able to insert an addendum to a patient’s file, but be careful to consult with your legal counsel before doing so.
  • Don’t worry about “bothering” your attorney. Always feel free to email, call, or otherwise contact your attorney. Your counsel is eager to collect all relevant information that could assist you in your defense.

What Should I Expect During a Medical Malpractice Claim?

It’s natural to panic when you discover you’ve been sued for medical malpractice. A bit of guidance on what to expect can help calm your nerves. Generally, here’s what you can expect:

  • Your insurance company will provide you with a contact person. It will also assign you an attorney.
  • It is likely that your case will be resolved without a trial; most cases are. The case against you might even be dismissed at a very early stage. Even if it has some merit, there is a potential that your case can be settled.
  • You will feel many emotions as you go through the litigation process. You may also experience physical symptoms such as insomnia, lack of appetite, or anxiety. Don’t forget to take care of yourself and seek support from mental health resources if you need to.
  • Understand that the complete and final resolution of the claim can take a long time, regardless of fault. Medical malpractice suits can range from resolution in under a year to upwards of four years.
  • The claim may go to trial. If this happens, it’s important to be prepared. You may be asked to testify as to what occurred during the course of the patient’s treatment. Your lawyer should extensively prepare you for anything you will need to do as part of a trial. Remember that just because the claim against you goes to trial does not mean that the plaintiff is likely to win the case.

Final Thoughts

If you’ve been sued for medical malpractice, the best things you can do are to stay calm, collect relevant information, and trust your insurer and attorney to expertly guide you through the process. Know that most physicians and other medical professionals who have been practicing for decades know exactly what you’re going through, and that the existence of a claim does not necessarily mean that you are at fault. As you go forward in your practice, focus on being the best healthcare provider you can be for your current and future patients, leaving the legal dilemma to the experts.


Image courtesy of istock.com/Rawf8


Last updated on Oct 05, 2022.

Originally published on Aug 18, 2022.

The views expressed in this article are those of the author and do not necessarily reflect those of Berxi™ or Berkshire Hathaway Specialty Insurance Company. This article (subject to change without notice) is for informational purposes only, and does not constitute professional advice.

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