Risk Management

Are you being sued?

About the Author
Eric C. Marine is Vice President of Claims for the American Professional Agency, Inc. and a frequent writer on topics or risk management in the mental health field. O. Brandt Caudill, Esquire is a prominent defense attorney with the firm of Callahan, McCune and Willis in southern California. He attended the “Ramona” trial as an observer. Mr. Caudill has published numerous articles on mental health care issues and the law. Sylvan Schaffer, J.D., Ph.D. is both a practicing psychologist and a lawyer in the greater New York City area. He serves as Legal Counsel for the New York State Psychological Association and has written extensively on risk management topics.

Dr. Pat Carmichael stared at the summons in her hand. She was being sued for forty counts of malpractice and her former patient was asking for $1 million in damages. Even though Dr. Carmichael knew she was perfectly innocent of the charges, she was shocked, angry, and extremely anxious. Her professional world had been turned upside down. As a psychologist, she could help others handle the most stressful of life situations, yet she wasn’t sure how she could help herself when faced with a malpractice suit. Many professionals are unprepared for the stress associated with a potential or actual professional liability suit. Even though the malpractice suit is covered by an insurance policy, it is important to understand that: – In general, lawsuits take a long time to reach resolution. Legal issues can become complicated and/or drawn out by opposing attorneys. Be prepared to be involved in the claim for at least one to three years. – It is probable that your records will be subpoenaed by the plaintiff’s attorney as evidence. Do not be alarmed; this is standard legal practice. However, do not release any records without first consulting your defense attorney. – Most lawsuits have multiple allegations of wrongdoing. This “shotgun” approach is an attempt by the plaintiff to hold you liable “one way or another”. Bear in mind that under most circumstances, all allegations are settled or adjudicated at one time. – Expect to spend time with your defense attorney at strategy conferences, in depositions and in court. Controlling your own anxiety is critical in order to achieve the best results. Since legal proceedings can be time consuming, be prepared for distractions from your work and periods of stress. You are vulnerable during these periods and should take precautions to protect your interests. Some important risk management strategies are:

1. Remain calm and do not panic. We live in a litigious society and, unfortunately, it is not unusual to be sued in a professional capacity. Many lawsuits are frivolous. Do not become overly concerned or depressed. Maintain a calm demeanor and continue to practice your profession in your usual high standard.

2. Do not discuss your claim with anyone other than your defense attorney. Most professionals are unaccustomed to dealing with the legal system and this unfamiliarity may cause you to do or say something that can make matters worse. Consult only with your attorney and follow his/her advice.

3. Admit nothing and make no self incriminating statements to anyone. Whether the claim is totally frivolous or has merit, do not admit anything or release any documents unless instructed to do so by your defense attorney.

4. Cease all contact with the patient. You are in a adversarial position when you are being sued by a patient. Do not engage in verbal communication with the patient or see the patient after the lawsuit has been filed. Do not attempt to “negotiate” a resolution with the patient or the patient’s attorney. Such contacts are NOT privileged communications and can be used against you in the litigation. Refer all communication from the patient or patient’s attorney to your defense attorney for handling.

5. Do not destroy any documents. Assemble all relevant documents and records, but do not show them to anyone except your defense attorney. Provide your defense attorney with copies of all relevant files, calendars, notes, etc. Keep the originals.

6. Use professional consultation with care. While it is tempting to discuss your lawsuit with a trusted colleague, such conversations generally do not qualify as privileged information and can be admissible in court. Personal therapy for stress and other personal issues related to the lawsuit is considered privileged communication.

7. Your defense attorney is your advocate in court. It is imperative that you work with your defense attorney and follow his or her advice on legal issues. Remember that communication with your defense attorney is privileged information.

Disclaimer: The information provided in this scenario is a composite of actual claims. However, identifying names, locations, and circumstances have been masked to assure confidentiality.