Prepare for the Worst

How to Survive a Medical Malpractice Lawsuit By Ilene R. Brenner, MD. Wiley-Blackwell, 2010 [ISBN: 978-1-4443-3130-1 (approximate price $40.00)]

How to Survive a Medical Malpractice Lawsuit is a manual intended to demystify what one can expect when named as a defendant in a malpractice claim. Given the likelihood that a physician practicing in the U.S. will be sued at some point in his/her career – especially those in “high risk” specialties – this book should have broad appeal in the medical community. The author, Ilene Brenner, is a practicing physician who offers pragmatic strategies that she found helpful based on personal experience as a malpractice defendant. She augments what she learned with legal knowhow from a seasoned malpractice defense lawyer – her father.

The book provides a detailed description of the convoluted twists and turns that a malpractice claim may take. It follows the chronological steps of a claim, beginning with the defendant being served legal notice. Each phase, its associated legal terms, procedures and potential outcomes are concisely explained. Key process steps (i.e. jury selection, expert witness selection and testimony, decision-making regarding whether to settle or go to trial) are summarized, embellished with pertinent questions or options that may warrant exploring.

The difference between a “claims-made” and an “occurrence” professional liability insurance policy is explained, as well as the importance of promptly notifying the insurance carrier of both formally-asserted claims and cases a clinician believes may lead to a claim in the future. The meaning and usefulness of key policy terms, such as the “consent to settle” clause, are also described. The author also makes of point of describing how a defendant can recognize if his/her interests are being effectively protected by the carrier’s assigned claim adjuster and the appointed defense lawyer, and steps to take if indicated.

Dr. Brenner allots considerable space to explaining how to prepare for and comport oneself when giving a deposition, testifying in court, and while sitting at the defense table during a trial. Examples of cases in which otherwise defensible claims have been lost because of poor preparation or ill-advised courtroom behavior emphasize the importance of those strategies. Realistic lines of inquiry by plaintiff lawyers during a deposition or trial are cited, as a basis for offering tips on how to frame one’s answers in a constructive manner. Commentary is also offered on highly specific topics that may be overlooked in similar texts, such as when it is imprudent to research the clinical practice issues involved with the case. The emotional impact of being sued is also addressed, with a number of coping strategies offered the author found useful.

Though understandable, the author’s antipathy for plaintiff lawyers and “hired gun” plaintiff experts is transparent and a bit off-putting. Her admonition to never discuss a case involving an unanticipated event with a hospital representative unless represented by legal counsel – while well intended – appears to impute bad faith to all individuals charged with such investigations. Moreover, there is no mention of a hospital’s duty to perform a thorough, multidisciplinary, root cause analysis (RCA) of cases that meet The Joint Commission’s definition of a sentinel event. When physicians are unwilling to candidly share their perspective during such reviews, the hospital’s ability to identify and implement patient safety improvements is significantly constrained.

Following the content highlighted above, practical strategies to reduce the likelihood of being sued are also offered. Topics include (but are not limited to): informed consent and refusal, medical record documentation, effective communication, and the risk of keeping “personal notes.” Because such practices are only touched on, readers should exercise caution when applying such advice in a specific case; to do so could be problematic. For instance, the section pertaining to patients leaving against medical advice (AMA) advises that if the patients are determined to be impaired, mentally incompetent, and unable to make a proper decision for their care “you cannot allow them to leave the hospital AMA.” It would have been useful to have explained that unless such detentions are carried out in strict conformance with applicable statutes, individuals held against their wishes could allege “false imprisonment.” Emphasizing the benefit of obtaining case-specific, concurrent legal advice would also have been helpful.

The book’s engaging style and relative brevity (136 pages) make it an easy read. The comprehensive glossary also promotes understanding of obtuse legal terms. Differences in states’ statutes in regard to: alternative dispute resolution practices, recognition of collateral payment sources, and the so-called “I’m sorry” laws are outlined in the appendices. Persons most likely to benefit from reading this book include: medical staff leaders, physicians, residents, advanced practice professionals, and those involved in claim management.

Anne Irving is assistant vice president of risk management at Premier Insurance Management Services, a subsidiary of Premier, Inc.