To Settle or Not to Settle

By Krishna Jain*, MD, FACS

I had only been in practice as a general and vascular surgeon for a couple of years when I got the call. A 19-year-old had been involved in a head-on collision with another vehicle. Despite my best efforts and those of the entire trauma team, the young man succumbed to his multiple injuries.

I had followed all the trauma protocols, but that did not prevent my being named in a malpractice lawsuit filed by the family. I wasn’t alone, the hospital and another surgeon were among the others being sued.

Since I had done nothing wrong medically, I decided to fight the lawsuit.

By the time the trial was scheduled to get underway, everyone named in the lawsuit had settled – except for me. I was sitting in the courtroom, waiting for the proceedings to finally begin, when the judge called me and my attorney into his chambers. Why hadn’t I settled the case, he wanted to know. A young person had died and, if the jury were to decide in favor of the plaintiff, he said, you will bear the sole responsibility of paying the award. Your insurance may not cover all of it, he added.

His words sank in. Despite the fact that I had done nothing wrong, I settled.

It became painfully obvious to me that, in practice if not in intent, the purpose of a malpractice lawsuit is not to find the truth. It is a money game. The judge was part of the system and understood that. The day I settled the lawsuit against me, I decided that I would seek to understand the system and be better prepared if I were ever to be sued again. I would start defending doctors. As my practice grew and I began to specialize in vascular surgery, I also insisted that all my younger partners take the time to learn the system.

You went to medical school, finished your residency and possibly a fellowship in your specialty of choice. During all that time spent in learning, no one ever taught you how the law of the land might impact you once you were out on your own taking care of patients. It is true that you could be sued as a medical student, resident or fellow but the real likelihood of being sued is when you are in practice. That is when you will have medical malpractice insurance with large limits that the plaintiff’s attorney would like to collect from.

It is inevitable that in a long professional career a physician will be named in a lawsuit. You will find out that your time has come, and you are being sued for malpractice when you are served with papers. You will have to inform your insurance carrier. They will assign a defense attorney to work with you. The attorney will become your best friend – and your chief ally – until the suit is resolved. Follow their advice.

It is important to remember, however, that your attorney is not a doctor. It is up to you to educate the attorney about the medical facts of the case. Go over all of the details very carefully. There may be areas where the documentation is not complete. Do not attempt to fill in any missing gaps by making changes to the records. I repeat, do not change the records. There may be times when you could have done a better job of documenting what was happening. This can all be explained during your deposition..

As physicians, we have a tendency to want to explain. At the time of deposition, however, keep your answers short. Address only the questions being asked, do not volunteer additional information. Providing a longer explanation will only open new doors that the plaintiff’s attorney will be only too happy to walk through.

In most cases, it will cost the insurance company less to settle the case than it would to fight it in court. So, expect your insurance company to recommend that you settle. Listen to your attorney’s advice and make an informed decision. When you are taking out malpractice insurance, be sure to get a policy that gives you the right to decide whether or not to settle in the event that you are sued. In some policies, that right is reserved by the insurer. In an employment model, your employer likely already has an insurance policy in place that you may not be able to change, but it never hurts to ask.

Physicians often become despondent when they are being sued. It can feel like the whole world is crashing down around you. It is only natural to experience feelings of guilt and self-doubt as well as situational depression. You may be tempted to hide the fact that you are being sued from your partners, staff and, perhaps, even your family. Don’t give in to the temptation. You will need the support of all of them to help you cope with the challenges you face.

Most importantly, if you get sued, remember that it is not the end of the world. Take control and work with your attorney. And take heart – the majority of malpractice lawsuits are won by doctors.

*The author does not claim to be an attorney, and this is not legal advice.