The bad medical outcome: A proactive response to a potential claim enhances your defense

By Frank Connor

A medical professional who has concerns that a patient may pursue a malpractice claim after a poor outcome of some kind can take immediate steps to more aggressively manage the risk of liability and strengthen the defense against the potential claim.

Contacting your professional liability insurance carrier right away provides an opportunity to conduct an investigation of the circumstances of the incident, including identifying potential witnesses on your behalf, and obtaining potential evidence in your favor. Equally important, such work conducted by the insurer through counsel will be protected from discovery in any subsequent lawsuit. Information collected and documents created in a less formal manner and absent the direct involvement of your attorney will likely all end up in the hands of the patient’s lawyer down the road.

Because it might be years before a patient files a medical malpractice lawsuit, it’s important to start an investigation quickly to preserve the key evidence that will help defend against the claim.

Determining who you should contact to report an incident of potential negligence depends on whether you are employed by the medical entity where a patient is treated, and, if so, whether you are covered under the entity’s medical professional liability policy. In that circumstance, you should promptly report the incident to the entity’s risk manager and ask that counsel be retained to advise you.

On the other hand, if you are insured under an individual professional medical liability policy, your first phone call should be to the claims department of your insurance carrier. You should also ask that defense counsel be assigned to advise you on what to expect. Discussing the potential claim with your attorney creates the attorney-client privilege that will help protect the pre-lawsuit investigation from discovery by a patient’s attorney.

Your carrier’s claims professionals can provide important advice on how to preserve the relevant medical records and the persons with whom you should or should not discuss the incident. For example, if you are insured independently you should let your carrier know immediately if the medical entity where the patient was treated has requested that you provide a statement about or attend a meeting regarding the incident. If so, you should not do either without the advice of your attorney.

Another important consideration is that your insurance coverage for such potential liability is triggered by reporting a claim in keeping with the requirements of the policy. You can jeopardize your coverage by failing to make a timely report of a claim against you. By reporting the incident immediately, you put yourself in the best position to receive the advice you need, allow for a full investigation that is protected from discovery in any subsequent lawsuit, and invoke your right to the benefits of your insurance policy.

Frank Connor is a partner at Barton Gilman LLP. He has dedicated his career to defending medical professionals in the courts of Rhode Island and Massachusetts, before the licensing boards in both states, and against billing investigations by private healthcare insurers as well as state and federal authorities.