PERSONAL COUNSEL FOR PHYSICIANS

I have never worked as a defense attorney for a medical malpractice insurance company but I have served many times as personal counsel for a physician who was sued or threatened with a malpractice suit.

Early on, I adopted a strategy that many defense attorneys retained by insurance companies consider to be heresy.

I decided that when a plaintiff’s attorney threatened or filed a suit that I could see would fail on one or more grounds, I would present that attorney with a written analysis of the case, complete with leading medical literature in support of the analysis.

In other words, I would gratuitously educate the plaintiff’s attorney and do it as early in a case as possible.

That approach requires that I have evidence from the medical records and from medical literature clearly showing that there was no violation of the standard of care or that the conduct in question was not a contributing cause of a bad outcome.

I also have to obtain the approval of an insurance company adjuster for any presentation I propose to provide a plaintiff’s attorney but I have never been turned down.

If I can show that a case is fatally flawed before a suit is filed, most plaintiff’s attorneys will cease and desist. Most are working for a contingent fee and do not want to spend a lot of time and expense on a case they come to understand is unfounded.

The key is to intervene early. That’s when the plaintiff’s attorney does not yet have a substantial investment in a case and economic self-interest weighs heavily against proceeding.

Sometimes there is not time to intervene before a plaintiff’s attorney has to file suit to a meet a statute of limitations deadline.

Under those circumstances, I believe an extension of the deadline should be offered to obtain time to prepare a presentation and meet with the plaintiff’s attorney before a suit has to be filed.

No physician wants to be subjected to a suit that might be prevented. Extending the deadline for filing suit with the consent of the insurance adjuster is a far better alternative than facing a suit that could have been prevented.

Of course, many cases are not that clear cut. The sequence of events may be unclear. There may not be a well-defined standard of care. There may be a reasonable dispute over whether different care would have prevented a bad outcome.

In cases that are not clear cut, my role as personal counsel is to work with the defense attorney retained by the insurance carrier. Those attorneys usually work on a large number of cases. My role is to assure that the physician’s interests are well served at each stage of the litigation:

  • the initial analysis of the medical records

  • the selection of expert witnesses

  • preparation for depositions of witnesses including depositions of the physician and the experts on both sides

  • settlement negotiations

  • preparation for trial if a case is not settled.

If a case does clearly involve negligent conduct that caused harm, I will not help conceal or misconstrue the misconduct. I am, however, willing to help facilitate an early settlement and if that cannot be achieved, help a physician cope with the litigation process.

Here are some examples of cases on which I served as personal counsel for a physician:

  • Oncologist not responsible for an oncology nurse’s medication error

  • Oncologist not responsible for adverse effects of cancer drug

  • Pulmonologist serving as Medical Director not responsible for error of care flight nurse

  • Anesthesiologist not responsible for tech stealing vials of narcotics and replacing them with vials contaminated with hepatitis C virus

  • Obstetrician appropriately monitored fetal heart rate during labor

  • Orthopedist not responsible for formation of scar tissue (fibrosis) affecting nerve roots after back surgery

  • Orthopedist not responsible for complication of hip surgery

  • Otolaryngologist not responsible for damage to bone caused by tumor.