February 2003 · Vol. 15, No. 2Chicken soup for the defendant physician
Facing litigation over an adverse outcome? You’re not alone. An expert offers advice on keeping records, choosing an attorney, preparing a defense—and just plain surviving.
Richard
M.
Soderstrom,
MDDr. Soderstrom is clinical professor of OBG at the University of Washington School of Medicine in Seattle.
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KEY POINTS
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The average claim takes approximately 4.2 years to resolve.
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The burden of proof rests with the plaintiff and his or her attorney, who must demonstrate that the defendant physician’s alleged error was the proximate cause of an injury.
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Many insurance carriers require the physician to report any unexpected event that suggests a suit might be filed.
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With surgical cases, it is important that the physician take time to educate the attorney about the technical aspects and limitations of the procedure in question.
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If there appears to be a special allegiance between the insurance carrier and the law firm chosen to handle the defense, the physician should consider hiring a personal attorney, especially when codefendants are involved with whom there may be some dispute.
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The emotional impact of medical litigation upon the defendant physician can be profound—particularly since the average claim takes approximately 4.2 years to resolve, from its occurrence to the closing of the case.1 Unfortunately, litigation affects almost all Ob/Gyns sooner or later. According to a 1999 survey of American College of Obstetricians and Gynecologists (ACOG) members, an Ob/Gyn can expect an average of 2.5 liability claims over the course of his or her career.1 In that survey, 75.6% of respondents indicated that 1 or more claims had been filed against them, and approximately 28% of Fellows reported at least 1 claim for care rendered during residency training.1
For more than 25 years now, I have been involved in some aspect of medical litigation—as an expert witness, a case reviewer for medical liability insurance carriers, and even a defendant. Much of my experience comes from reading the depositions of defendants. Over the years, a number of important elements have become apparent—most of them arising when the defendant is called on to explain his or her medical decisions in relation to an untoward outcome. The pivotal issue often is proper and thorough preparation by the defendant. In some cases, this preparation should begin even before a lawsuit is filed.
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