H E A L T H L A W What to Do When You Get Named in a Malpractice Suit ■ JOHN SHUFELDT, MD, JD, MBA, FACEP Y our front office receptionist informs you that there is a man at the door who says he is a process server, and that he wants you to sign for a registered letter. Your first thought, of course, is to run out the back door of your office or to simply feign a stroke. Instead, common sense prevails and you sign for the let- ter informing you that you are a named defendant in a malpractice suit. What do you do? If your answer is to move all of your assets into your spouse’s name, think again. Many physicians are named in a malpractice suit at least one time in their professional career. Consequently, the odds are against your being able to dodge the bullet forever. However, in the end, only 20% to 40% of malpractice suits filed against physicians end up with a payout to either the plaintiff or their attorney. You can even improve upon those odds if you follow a few simple steps. Prior to actually being served, many patients give the physician a “heads up” that their care did not meet their expectations. These “shots over the transom” are a gift. Take time to talk with the patient, address their concerns, and write off a bill if necessary to make them happy. Clearly, some patients enter the relationship with expecta- tions which are off the chart, and nothing a provider can do will make the patient happy. As mentioned in a previous article, these are the patients that belong in your competitors’ clinics. Dismiss them from your practice as soon as practicable. If, however, you missed the initial signs and symptoms of the “impossible to please” patient, deal with them in the most professional and polite manner possible and then appropriately dismiss them after the course of their illness. John Shufeldt is chief executive officer of NextCare, Inc. and sits on the Editorial Board of JUCM The Journal of Urgent Care Medicine. 32 Sharing the Bad News When should you report patient complaints to your insurer? Clearly, a physician does not need to report every little issue that a patient complains about. If you are unsure, do not talk with a colleague, since that conversation may be admissible as evidence. The safer course of action is to seek the guidance of an expe- rienced medical malpractice attorney. If still in doubt, the default position is to simply report the incident to your carrier. If the patient has taken the time to write you or come in sepa- rate from their appointment to discuss their concerns, you should report. Reporting the potential claims will not increase your malprac- tice rates. Insurers understand that medicine is a risky business and that not everyone will always have a good outcome. Often times, the insurer along with consul can mitigate the damages of a bad outcome case if it was reported early enough. Once you are actually served, ignoring the summons won’t make it go away. After you receive a summons, you need to report it to your insurer immediately. In fact, if you have not read your malpractice policy, you should do so now since many policies have very clear guidelines on reporting. Also, once you have been named, you should not communicate directly with the patient unless they are being seen for a medical condition. Under no circumstance should you attempt to call or contact the patient regarding the litigation. There is absolutely no upside to communicating with the patient about their claim. Another important caveat: Do not in any way alter the medical record. This means do not cross something out, “lose” a page, remove a lab test or a consult, etc. If you must add something to the record, appropriately date and time the addendum. I knew a physician who dictated an outrageously defensive operative report 10 days after the surgery and three days after the patient died as if he had just walked right out of the operating room. He neglected to realize that all dictated notes have a “date dictated” and “date transcribed” annotation at the end of the dictation. Needless to say, he paid dearly for that transgression. JUCM T h e J o u r n a l o f U r g e n t C a r e M e d i c i n e | Fe b r u a r y 2 0 0 7 w w w. j u c m . c o m