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Talking Points

By Jock Hoffman, CRICO

Related to: Communication, Disclosure + Apology, Emergency Medicine, Primary Care, Nursing, Obstetrics, Surgery

A physician or nurse who receives a Summons and Complaint regarding a medical malpractice suit also receives pointers about whom to talk to, what to say, what not to say, and whom not to talk to. Despite some emphatic precautions, the appropriate advice to those malpractice defendants is not strictly “shut up and lawyer up.”

To help defendant clinicians cope, the answer to "Who can I talk to about a malpractice claim against me?" must be split between a) the details of the event at the center of the allegation, i.e., the patient, other providers, clinical decisions; and b) how being sued makes you feel, affects your ability to concentrate, impacts the way you now practice medicine, etc.

Case Specifics

From a legal standpoint, physicians, nurses, and others named in a malpractice claim or lawsuit are advised to limit conversation about case details to settings with either peer review protection or defense team privileges (the latter comprising your institutional risk manager, malpractice insurance representative, and the lawyers assigned to your case). Discussing case details with practice partners, colleagues, or other clinicians named in the same case, puts you—and those you spoke with—at risk of having to share such conversations with the plaintiff’s attorney. And never try to “set the record straight” with the plaintiff's attorney.

Emotional Impact

Discussions with family, friends, colleagues or professional counselors, about the emotional and professional impact of being sued (minus any case specifics) are inconsequential to the plaintiff and, by and large, seen as a healthy tactic in reducing the stress of the malpractice case from your subsequent day-to-day activities. When the case is weighing on your mind, relieving some of that burden will likely benefit you, your family, and your patients. Just don't share the details.

Sharing the Lessons

Once a malpractice case has been resolved, many sued caregivers see value in publicly sharing their experience with physician and nurse colleagues. Those whose cases were resolved outside the courtroom seek an opportunity to tell their side of the story. Others want to demystify the litigation experience for their peers, and some just want to use their personal experience to reinforce key tenets of patient safety. Education programs that feature such personal accounts are well received by empathetic clinicians, often with many questions to help them understand how they should respond, should they ever be in their colleague's shoes. CRICO has developed thoughtful answers to many of these questions, including:

  • What happens if I ignore a Summons and Complaint?
  • What should I say to a patient who is suing me?
  • Why do some cases settle before trial?

For a defendant in an active malpractice case, having the right advice at the right time can make a significant difference in their lives beyond the case. And that’s worth talking about.


May 5, 2011
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