According to the AMA, 1 in 3 doctors have been sued for medical malpractice. And the data that we see from the insurance carriers shows that number continues to go up, depending on your specialty, where you practice, and how long you’ve been working. It’s very likely that you will be involved in at least 1 malpractice claim by the time you retire from the practice of medicine. And if you’ve never been involved in a claim before, it can be a bit of an unknown… perhaps even a little scary and intimidating to think about what it’s like to go through a lawsuit. So today, we’re going to talk about what happens after you get sued for medical malpractice… what the claim process actually looks like from the insurance side of things, so that you can be better prepared if and when it happens to you.
Let’s start our conversation by breaking down the malpractice claim process into 5 stages and unpack it a little…
The first stage is the INCIDENT EVENT or DISCOVERY STAGE. Malpractice cases begin with an adverse event or the discovery of an adverse outcome, which can sometimes come several years after the procedure or medical event occurred. At that time, the patient may choose to file a lawsuit. It’s not uncommon for a doctor to be sued several years after treatment was rendered… especially if it’s something that doesn’t show up right away.
After the INCIDENT stage, we move to the NOTIFICATION STAGE. Once a suit is filed, the medical provider and any other named parties (the hospital, your practice, or other healthcare providers) are given notice of the claim. This is typically done via a certified letter. If you are named in the suit, you should promptly notify your practice administrator, hospital risk manager, or the appropriate in-office person and then notify your malpractice insurance carrier.
Once the carrier has been given notice, they will open a claim, collect some preliminary information, and then assign a defense attorney to the case. The defense attorney is going to be your primary point of contact going forward. You will work with them a lot in the months that follow.
DATA COLLECTION and VALUE ASSESSMENT STAGE
The third stage is the DATA COLLECTION and VALUE ASSESSMENT STAGE. Once a claim has been opened, the defense attorney and the malpractice carrier will begin collecting data to assess the incident in more detail. After they have a good handle on the case and can determine an approximate value (which is basically them determining how much it’s going to cost them to pay for the claim – both the indemnity and the legal fees), the insurance carrier will set a reserve on the case. A reserve is a placeholder so that the company can budge and project the costs of losses internally. So, a claim adjuster may want to look at all of his open claims at ACME Malpractice Company and determine what the total potential cost will be. Carriers tend to reserve very conservatively – which is smart because they don’t want to underestimate how much a case may be worth. They can change this number as the claim progresses, so if it looks like things are going especially well, they may drop the reserve amount down. If it looks like it might be a higher payout, they might increase it. Obviously, their hope is that the final outcome will be less than what they’ve reserved.
During the data collection phase, doctors will often be dismissed from cases, if it’s clear that they were not at fault. It’s pretty typical that an initial malpractice claim will have a long list of providers named – most of them will get dismissed as the data is analyzed and attorneys on both sides narrow down the facts of the case to see what’s really at play.
The next stage is the DECISION STAGE. After the data has been collected, you will consult with your defense attorney and the carrier to determine how best to proceed. If your policy has a consent to settle provision, the carrier must obtain your consent before they’re allowed to settle the claim on your behalf. You’ll work with your attorney to talk through the options and determine if it makes sense for you to settle the case or not.
And the final stage of the claim process is the RESULT STAGE. If a settlement option is chosen and all parties agree, the plaintiff is awarded the appropriate amount and the claim is closed.
If the case goes to trial, it will be up to a judge and jury to decide the outcome of the claim.
Once a verdict is rendered (either a defense verdict or a verdict in favor of the plaintiff), any necessary monies are paid and the claim is closed. Obviously if it’s a defense verdict, you win and there’s no payment made.
If the case is not settled beforehand, malpractice claims generally take about 18 months to 2 years from the time suit is filed until trial; however, in some states it can take up to 5 years or more.
Malpractice claims can be lengthy and stressful, but there are some things that YOU can do to make the process go as smoothly as possible – and help you get a more favorable outcome.
So here are 3 tips to leave you with today.
Be proactive after an incident or adverse event. Contact your practice administrator and malpractice carrier even if you have not yet received a formal claim notice. Most carriers have risk management programs in place, and they can provide you with guidance and suggestions on some immediate steps that you can take after an incident occurs.
It may be possible to avoid further escalation of an issue if it is dealt with promptly and with the guidance of your insurance carrier and legal counsel. Many carriers now have early intervention programs in place, or adverse outcome stipend programs that can help diffuse the situation and provide a remedy to ensure the patient is satisfied and taken care of.
And remember that for most malpractice carriers, their Risk Management department is SEPARATE from their claims and underwriting teams. Meaning, you shouldn’t hesitate in reaching out to ask for help on an issue because you’re worried that it will increase your premiums. The Risk Manager doesn’t report your issue to the underwriter to raise your rates – they want to work with you to diffuse the situation and reduce the likelihood that it will turn into a claim altogether.
Keep timely, accurate medical records. Record factual statements of the events in the patient’s medical record along with notes related to follow-up care. Make sure the chart includes a complete description of your interaction with the patient. If you disagree with another provider, don’t use the medical record to document your concerns; rather, thoroughly document the basis for your treatment. For example, if you know that Dr. X made a mistake, don’t put it in the patient file. You can handle that separately with your administration, etc.
Don’t backdate any entries in the medical record and avoid creating entries that may appear to be self-serving. It’s better to add an addendum than to go back and change what you said. Remember that medical records can be admissible in court. Avoid writing anything in the file that is unrelated to the care of the patient (Ex: “family is mad” or “legal team notified”). You want your medical records to be thorough, timely, and objective.
Cooperate with your attorney and help them help YOU. Your defense attorney is your biggest advocate, and they want you to be positioned well as the claim process moves forward. Take their advice when given and be open and honest with them. Be patient and helpful as they work to collect information and provide you with coaching as you prepare for depositions and other interrogatories.
We’ve put together an overview of the claim process and all of these QUICK TIPS in a free download that you can access via the button just below. Take the time to familiarize yourself with this process so that you can be well-informed and prepared if/when you find yourself with a malpractice claim of your own.