What do you know about the role of your medical malpractice defense attorney? Most physicians probably don’t think too much about the work that medical malpractice defense lawyers do. Until they face a malpractice lawsuit themselves, that is. Today, I want to kick off a short series of posts on the work medical malpractice defense attorneys do and the relationship that you, as a physician-defendant, might form with one. Understanding a little more about what medical malpractice defense lawyers do can facilitate the process for you, propelling you toward greater confidence and success. And your success, after all, is what both you and your medical malpractice defense attorney are ultimately after!
The Expert You Need
In my practice in a pediatric emergency department, I periodically make very difficult diagnoses for patients and families. Among those is the diagnosis, or suspected diagnosis, of childhood leukemia. That news is life-changing for families, and I often find myself very aware of that fact as I deliver it. One of the first things I tell parents when I diagnose a condition like leukemia is that the next step I take will be to connect them to the very expert they need.
Amazingly, according to the National Cancer Institute, “approximately 85% of patients aged 1 to 18 years with newly diagnosed ALL treated on current regimens are expected to be long-term event-free survivors, with over 90% surviving at 5 years.” Without a skilled pediatric oncologist — an expert — using those current regimens, however, survival is typically brief and nil.
When it comes to a diagnosis like ALL, perhaps the most powerful thing I can do is to pass the baton directly to the specialist with the knowledge and experience to evaluate matters and develop the best course of action.
While I would never want to compare in any way the strain of a medical malpractice lawsuit to the enormous challenges that children with ALL and their families endure, I do think there are a few useful parallels. Both are complex. Both have the potential to go on for a very long time. And while the odds are good, in neither case is the outcome assured. Above all, in both instances, people are entering uncharted waters in which their relationship with an appropriate expert will make a huge difference to the ultimate outcome.
If and when you become a defendant, your case must find its way into the hands of individuals with the right expertise. These may include a healthcare risk manager or insurance claims manager, but no expert is more essential than a skilled medical malpractice defense attorney. Not unlike an oncologist, this is the person with the knowledge and experience to evaluate the case and help you develop, dynamically over time, a viable plan for your situation as it evolves in real time with all the bumps in the road almost certain to arise.
Most times, it is the malpractice insurance carrier who assigns a particular case to one of the medical malpractice defense lawyers they know and trust. Generally, I’d suggest you welcome their selection. This attorney is likely someone they've seen at work repeatedly in the past and found to be capable and knowledgeable. They may even have reason to believe that this attorney will be particularly well suited to your needs. What you want is the sharpest, most competent defense counsel available in your community, and you want them immediately. Your indemnity carrier will likely know exactly who that is and have ready access.
What A Med Mal Defense Lawyer Does
I’m no attorney.
Nonetheless, having experienced a med mal lawsuit from the perspective of physician-defendant, I look back on the process and am impressed by the many roles medical malpractice defense attorneys and their teams play, some mundane, others dramatic, and many behind the scenes. Like oncologists, they must possess a huge fund of knowledge and an even bigger fund of patience, technical skill and the guts to implement it come what may, access in real time to information regarding specialty-specific developments, and a strong intuition about how a given case may play out, how best to attack it, and when to retreat and regroup.Furthermore, they generally bring a cool head to a highly emotionally charged situation.
Naturally, they are human, just as we all are. Some will do better work under certain circumstances than others, and all will have exciting successes and moments of failure. On average, though, I would say that I hear far more physicians refer to their defense lawyers as competent, driven, and trustworthy than not.
In order to succeed professionally, medical malpractice defense lawyers require a broad skillset. Among other things, they need knowledge of:
Medical malpractice case law in their state;
The legal procedures for collection of evidence and experience collecting it effectively;
The kinds of information which are “discoverable” and therefore must be made available to both plaintiffs and defense, which information it is legal and ethical to protect (or keep private), and insight into how best to go about ethically protecting the information that can legitimately be protected; and
The function of the court system in general and often in a given jurisdiction in particular, perhaps even experience with particular judges or plaintiff’s attorneys, all of which may impact upon their choices and recommendations regarding a case.
Many will surprise you with the amount of medicine they have learned along the way. They develop relationships with diverse intelligent and reliable medical experts, some of whom may weigh in on the merits of your case and eventually testify at deposition or in a courtroom on your behalf. They may also have insight regarding your particular hospital or malpractice insurance carrier and your policy parameters. Even the information they glean from you about your style and your preferences may impact upon their ideas regarding how best to navigate matters.
Like our clinical experience, this accumulated training, knowledge, and experience provide medical malpractice defense lawyers with the capacity to examine a case, marshall the necessary resources, and offer you guidance sensitive to the nuances of your particular situation. By all means, share your views openly with your med mal defense attorney. But also allow them to give you their honest take on your case based on their experience and patterns in your community. An experienced medical malpractice defense attorney is generally the expert you need to guide you through a long and complicated process to the best possible, high integrity outcome for you. Is there anything I’ve missed? Share your further thoughts on the role of the med mal defense attorney in the comments below.