How to handle your first litigation

[deleted813736]

how do you handle it??

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[GonnaBeADoc2222]

Wtf?! This sounds insane.

 

[cyanide12345678]

Good luck.

 

[deleted813736]

its ridiculous

 

[DeadCactus]

I would not discuss your active litigation on the internet. This post seems benign enough but what advice are you going to get from strangers on the internet that outweighs your legal council and is worth the risk of slipping something you regret into a public forum?

 

[Vandalia]

First, shut up! Do not discuss this with ANYONE except your attorney! (Or to be more precise your malpractice insurance carrier.)

Posting here was a major mistake.

Second, contact your malpractice insurance carrier and let them handle everything. There is nothing for you to worry about.

 

[forchinet121]

Why is posting here a major mistake? It’s anonymous no one knows who he is..

 

[Vandalia]

Because the first question at the deposition will be “have you discussed this case with anyone besides your attorney?”

 

[emergentmd]

Any lawyer would tell you not to. Case seems ridiculous. Medmal not paying for the case is preposterous. What a crazy case and sorry you are going through this. They also must be suing all the attendings too that is on the chart.

So messed up on every level esp with the medmal coverage. The one I had, mine bent over backwards to make my one case as least time consuming as possible.

 

[VA Hopeful Dr]

Any lawyer would tell you not to. Case seems ridiculous. Medmal not paying for the case is preposterous. What a crazy case and sorry you are going through this. They also must be suing all the attendings too that is on the chart.

So messed up on every level esp with the medmal coverage. The one I had, mine bent over backwards to make my one case as least time consuming as possible.

I'm assuming it's not medical malpractice because the patient's health was not harmed.

It also sounds like the OP had a moonlighting job similar to one I had in residency, doing disability evaluations. Interestingly, Midway through year I did that the company started requiring a chaperone for all exams even same-sex ones. No clothing was ever removed for any part of these exams. I now wonder if they had been sued for something like this before and this was their way to counteract it.

 

[forchinet121]

Because the first question at the deposition will be “have you discussed this case with anyone besides your attorney?”

The answer will be “no” let them try to prove otherwise

 

[emergentmd]

I hate lawyers. Anyone who takes this case has no morals. Settle this case for 50k or we will cost u 100k in time/court fees

 

[forchinet121]

Isn’t this absolutely insane? Like you have to pay out of your own pocket money? What if you just refuse to engage in this?

 

[WilcoWorld]

I live in Oklahoma where laws are ok.

Hot take...I love that in Oklahoma, the laws are OK

 

[calvnandhobbs68]

OP yes, you should take out the identifiable info out of here at least (state, year, etc) because as it stands, it'd be pretty easy to ID the case if you know what you're looking for.

I also second actually calling the malpractice insurance company who was covering you at the time and reviewing your policy to make sure they shouldn't be covering you. The lawyers just may not have bothered trying to go after the malpractice company because they know they'll get this tossed out ASAP and trying to scare you into a settlement. Whether the patient was harmed or not doesn't always have anything to do with coverage. For instance, this is the intro of my current policy (it's occurrence based which is why it's phrased like this):

The Company hereby agrees to DEFEND and PAY DAMAGES, in the name and on behalf of the Insured or his estate,
A) In any claim for damages, at any time filed, based on professional services rendered or which should have been rendered by the insured or any other person for whose acts or omissions the insured is legally responsible, in the practice of the insured profession during the term of this policy EXCEPT:
(Paraphrasing)
- Ownership, operation or supervision of hospital/business enterprise
- Payment of damages (BUT WILL DEFEND) in any claim for damages if said damages are in the consequence of the performance of a criminal/sexual act
- liability from a partnership
- liability of corporation which insured is a shareholder
- liability covered by some other insurance
- punitive damages over and above actual compensatory damages

So, if a similar situation were to happen to me, my reading of this policy is that I WOULD be covered, even if this was considered a criminal act. Contact the malpractice carrier.

 

[WilcoWorld]

Even more ridiculous is there are allegations that i conspired to defraud the patient out of his money, as if i had any incentive to do that. I spoke with a lawyer already. he said they are just looking to settle for any decent fee that puts money in their pocket (and the patients) and the claims are baseless.

This really sounds like a phishing expedition. Pay your lawyer to handle it legally. It has nothing to do with your medical skills and everything to do with $$$

 

[Vandalia]

The answer will be “no” let them try to prove otherwise

Well, to start from the back-end, the rules in each state are different, but in a number of states a perjury conviction automatically disqualifies you from holding a medical license.

As for how the prove otherwise, very simple: They will serve a subpoena on you for all personal electronic communications that discuss the case at issue. Attempting to delete such communications, or not turn them over in response to a subpoena, can result in very significant financial penalties, including the loss of insurance coverage. In addition, the attorneys who are working for you are not going to torpedo their careers to protect you.

Also keep in mind that it is quickly becoming a breach of the "standard of care" ("ordinary skill and knowledge") for a lawyer not to investigate the social media accounts of the other party. Believe me, the malpractice attorneys know about this site. If they see a case that matches one they recently filed, they are going to drill down.

"Just like in divorce cases, where electronic data and social media postings are Exhibit A, the same is now true in medical malpractice actions," says John W. Miller II, principal at Sterling Risk Advisors in Atlanta, GA.

An EP’s social media posts are all potentially discoverable, says Scaletta, depending on the situation and state rules.

"Where once we only had to worry about the medicine and what the experts said relative to the documentation of care, plaintiff attorneys now use electronic information, be it social media or otherwise, to discredit the defendant," says Miller.

Any information in the public realm, including social media posts, are "fair game" for plaintiff attorneys, says Miller. "The subpoena of electronic information has become one of the best tools in the plaintiff attorney’s arsenal for creating traps in the defendant’s testimony," he adds.

When physicians use a phone for both business and personal communication, typically the plaintiff attorney gets access to all the data, not just that which is pertinent to the case. "There is an argument that some malpractice insurers are making for physicians to keep two different cell phones — one for business and one for personal use," says Miller.

This has been successful to an extent, says Miller, in keeping data from the phone used for personal matters from being subpoenaed. "But to the extent a physician uses his or her business phone for personal reasons, usually all the data in that phone become discoverable," he says.

ED Legal Letter, 1 January 2015

 

[southerndoc]

The above posters make excellent points about not discussing an active case on the internet. I was dropped from mine several months ago and I still haven't discussed it here. I will once things have been finalized without no attempt to resurface it. Not that I did anything wrong at all, but I just won't discuss anything that could resurface.

What Vandalia said is partially correct. They don't always serve a subpoena for all personal electronic communications, but you are asked and expected to turn them over during discovery. This includes any text messages you sent/received regarding the case. While not specifically turned over, it would be used against you if you didn't disclose discussion in a public forum.

Good luck with your case. Sounds like non-sense and may even top my ridiculous case. Your malpractice carrier should cover this. If not, you may have grounds to sue them.

 

[deleted813736]

thank you all with your help with my .... Issue, nonspecific

 

[DeadCactus]

Why is posting here a major mistake? It’s anonymous no one knows who he is..

Nothing is anonymous. Plenty of people have lost their livelihood believing otherwise. It takes a lot of directed conscious effort to keep your identity hidden from even casual investigation. Betting that you can remain anonymous when there are professional and legal resources working against you is foolish.

We all probably speak a little more openly on the internet but it's foolish to post anything you wouldn't want to put your name and picture next to.

 

[HemeOncHopeful19]

The above posters make excellent points about not discussing an active case on the internet. I was dropped from mine several months ago and I still haven't discussed it here. I will once things have been finalized without no attempt to resurface it. Not that I did anything wrong at all, but I just won't discuss anything that could resurface.

I might edit the 3rd post that quotes OP’s entire issue if I were the 3rd post or had mod powers. Not sure if y’all have a policy about that or not though.

 

[Brigade4Radiant]

Use WhatsApp if you need to talk to your lawyer Also the SCA act to get data from Facebook in civil cases makes getting data hard.

I would t worry to much about it since worry isn’t going to help you anyone can sue but to actually win they need to prove fraud.

If anything you should get your lawyer to go after the malpractice carrier if they are refusing

 

[TJRock]

Because the first question at the deposition will be “have you discussed this case with anyone besides your attorney?”

Dumb question, but what if you did? Why is that a problem?

 

[southerndoc]

I might edit the 3rd post that quotes OP’s entire issue if I were the 3rd post or had mod powers. Not sure if y’all have a policy about that or not though.

That could possibly be construed as destruction of evidence.

 

[cyanide12345678]

I was sued for something very silly in residency. Took 1.5 years to get dismissed. It’s stressful like hell, and money wasn’t coming out of my pocket for the lawyer, plus i was the least important person in the law suit. This is one of the reasons why I’m fairly liberal with my workups now. I just don’t want to be sued lol.

 

[emergentmd]

Sued once in my 20 yrs career and the kicker was it wasn't even an ER pt. Some chronically sick pt on the floor, coded, on multiple pressors.

Medmal policy took care of 99% of the work and paid for everything. I spent 1 hr discussing case w my lawyer, 1 hr in early discovery with both lawyers. They offered a small settlement vs going to trial which would have cost medmal more money in lawyer fees and would have wrecked my schedule with all the trial dates, delays, and who knows how long this will last.

So my choice was settle and give the kids some $$ with nothing out of my pocket or die on my hill of never being sued/losing/settling a lawsuit potentially losing many days of work/scheduling inconveniences. Easy decision. Low stress from my part. The amount of stress for marginal cases is what you make of it.

 

[Siggy]

I hate lawyers. Anyone who takes this case has no morals. Settle this case for 50k or we will cost u 100k in time/court fees

Hey, my wife is a lawyer.

Of course...
1... she hates complainant lawyers.
2. She does insurance defense.

 

[Vandalia]

Dumb question, but what if you did? Why is that a problem?

There are a number of potential issues. Off the top of my head:

It allows the plaintiff to allege torts related to the disclosure of private healthcare information and if the case reaches trial, it allows the plaintiff to paint a picture of you as someone who is cavalierly disclosing the patient's medical information.

Next, similar to talking with law enforcement after you are arrested, it can limit or eliminate possible defenses. Let's say that someone sees you in the grocery store and asks a medical question and you (stupidly) provide an answer. He then sues you for malpractice. Slam dunk defense: There was no professional duty owed to the patient so there can be no malpractice. Now let's say you post about it here: "Just got served for an insane malpractice case: A patient came up to me in the store and asked ..." Now your poor choice of words would likely not be sufficient in and of itself for the plaintiff to prove that a physician-patient relationship existed, but your words made an absolute defense more complicated. (Not the best example, but you can get the idea from a few sentences.)

Third, if you discuss any communication you have with an attorney with a third-party, that can waive attorney-client privilege. (There are many exceptions to this rule.)

Talking about the case doesn't automatically mean that you will lose, or that your malpractice carrier will not defend you; but there are a lot of potential downsides with little real advantage.

 

[wendalltwolf]

Small tip: if they ask what book or medical literature you consider as the standard of care, the answer is always “it doesn’t exist”.

 

[southerndoc]

Small tip: if they ask what book or medical literature you consider as the standard of care, the answer is always “it doesn’t exist”.

When I've been asked that, I usually tell them medicine isn't law and not everything is black and white coded in official code. I rely on a variety of sources from texts, to journal articles, to podcasts, to online resources.

 

[Groove]

Oh, don't sweat it OP. From what I can remember from your original post, this is just a hustle to see if any money can be shaken from the doctor tree. Once they discover that you have no malpractice on this case, you'll quickly get dropped. Hell, you'd probably get dropped quickly even if you did have malpractice.

 

[lucid_leprechaun]

Oh, don't sweat it OP. From what I can remember from your original post, this is just a hustle to see if any money can be shaken from the doctor tree. Once they discover that you have no malpractice on this case, you'll quickly get dropped. Hell, you'd probably get dropped quickly even if you did have malpractice.

Yeah there is such a thing as being judgement proof. I feel like most of us are until 10+ years out for personal liability. Not a legal expert though. Listen to yours

 

[Groove]

Yeah there is such a thing as being judgement proof. I feel like most of us are until 10+ years out for personal liability. Not a legal expert though. Listen to yours

Once you've been through one or two of these, you realize how much of a game this is for plaintiff attorney's. It's just part of the risk that goes along with taking care of human beings in an increasingly litigious society. As long as you didn't do something egregious, it's actually extremely difficult to win a lawsuit against a physician for negligence or malpractice (but not impossible given the state). They have almost zero interest in pursuing monetary damages if you don't have malpractice as it's exceedingly rare for a physician to lose personal assets in these types of cases. Most of their leverage lies in the implicit threat of dragging out the lawsuit as long as possible and increasing your defense costs. They hope, correctly in many cases, that either you or your malpractice carrier will decide that it's far more cost efficient to settle the case for a small fee and make the nuisance go away.

I actually encourage people to share their experiences on here because as long as you aren't sharing discreet details and are being HIPAA compliant, I can't imagine someone discovering damaging details on an anonymous SDN forum and subpoenaing that information to use in a lawsuit. I suppose anything is possible, but c'mon...SDN? We are FAR more anonymous and vague versus EMDocs on Facebook. I think it's important for new docs to realize how common suits can be and it's a great outlet for docs in the middle of a lawsuit to discuss it and share their feelings. Depression, self doubt, despondency are just so common when docs get sued because they can't really talk about it with anyone and erroneously think they are the only ones going through that experience. I can remember a time when almost nobody discussed lawsuits on here and you just assumed that nobody got sued. I think @Birdstrike was one of the first that I can remember discussing their suit and it was such a relief to know that others went through a similar experience.

If people don't feel comfortable discussing it in the public forum, we should have a list of members available for private PM where they can discuss it in private. Better yet, a private sub forum with vetted members.

 

[Birdstrike]

Yes, you need to be careful who to and where you talk about your lawsuit

But you still need to talk to someone about the experience other than your attorney. That could be a spouse, friend, significant other, counselor or relative. Just whatever you do, don't talk about it with people that are also involved in the case, by saying something like, "If I could do it over again I would have done..." Because even though you think you're on the same team and your stories are straight, they could settle or be dropped. Then all of a sudden, they have nothing to lose by giving testimony that makes you look bad.

A colleague who you talked about the case with might testify, "We discussed that we shouldn't have done," because they already settled their case, and no longer have to fear liability. Their words about your discussions may not harm them, but may harm you, if you're still left fighting your case.

But still...You've got to be able to talk about it. Just be smart about who that person is. Lawsuits can be extremely emotional and stressful for physicians. I've been through two. I was innocent both times. But both took a heavy toll. Most of the time these suits are not personal. They are often frivolous and consist of nothing more than 2 lawyers fighting over an insurance company's money. But if you don't take care of yourself through these suits, they can be emotionally devastating, no matter how perfect your care was. No lawsuit is worth going into a clinical depression over, or feeling suicidal over.

Lawsuits don't need to be emotionally devastating. You need to be able to talk about them. Just don't do that in print, online, or with people who you'll end up getting dragged into court. Know how to keep those people from getting dragged into court, regarding your conversations. When the case is definitively closed, you can shout about it from the mountain tops. But until then, be smart about it.

Why a Malpractice Win Feels Like a Great Loss - Birdstrike M.D.