What to do if you are sued

by Timothy Feuling

Someday, even if you're an excellent, careful doctor of chiropractic, you may receive a notice from an attorney that you're being sued by a patient. It may be for failing to treat a medical condition, injuring a patient, or any number of other reasons. You may have actually been at fault, or you may be the victim of a frivolous or malicious lawsuit. Either way, the experience will not be pleasant.

Like so many of life's problems, being prepared can help minimize the distress and damage.

To prepare yourself for a possible lawsuit, you should create a "Legal File" containing information on your insurance policy and phone numbers of who to call in case of a lawsuit. Print this article and place it in the file as well. If the worst happens and you receive the dreaded notice, you'll know exactly what you need to do.

Here are the steps you should take:

WHO TO CALL:

*** Call your malpractice insurance carrier immediately. The quicker you can begin the process of dealing with the lawsuit, the sooner you can resolve the issue. Talk with your insurance company before you do ANYTHING else.

*** Do NOT call or contact the patient or the patient's attorney directly, even if the letter from the attorney asks you to do so in order to "avoid a lawsuit." If your patient or the attorney calls your office to discuss the case, refer them to your insurance carrier. At this point, you have to consider the patient and his or her attorney as adversaries! The lawyer's job is to help the client win the case, and anything you say can be turned into ammunition against you.

*** Do NOT talk with staff members, colleagues, friends or associates about the case. During the deposition period, the plaintiff's attorney may ask you if you discussed the case with anyone and you will be obligated to list the people you spoke to -- who, in turn, can be subpoenaed.

*** Do NOT speak with the media. While few chiropractic cases make the news, the prevalent anti‑chiropractic bias in the media can be vicious.

WHAT TO DO:

*** Start a separate file for the legal action. Document every phone call you make, and take notes of advice your insurance company gives you. Do NOT put legal documents in with patient records (which can be subpoenaed as evidence).

*** Review and ready your patient records, but do NOT change or alter them. If a lawsuit is filed, your patient's attorney will probably request copies of the records, and you will have to provide them. Look through the file to make sure everything is there, and make faithful copies of each item in the file. Do NOT release the originals. The rule about not altering records cannot be overstated. The worst thing you can do is add or change anything on the records, even if you are doing it for a totally "innocent" reason, such as to make your handwriting more legible. Any alteration will be seen as an attempt to deceive the judge or jury. Losing a lawsuit may cost you money, but "tampering with evidence" could cost you your license.

*** Work closely with your insurance company and defense attorney and listen to their advice. Some policies give your insurance company the right to settle out of court against your wishes. Other companies, such as CBS, have a "consent to settle" clause that gives you the right to make the ultimate decision. If you decide to take the case to court, be an active participant in your defense by providing as much information as possible to your attorney. This may include copies of the Council on Chiropractic Practice Guidelines, World Chiropractic Alliance position papers, or other documents. Help your attorney understand what chiropractic is about, and learn to explain chiropractic in lay terms so you can do the same with jury members. Don't hesitate to ask your insurance company or attorney questions about the proceedings.

*** Prepare yourself for depositions and court appearances. Learn about "court room etiquette" and make sure you have suitable attire. Use online resources such as the CBS Reports to find out how to behave in a courtroom or during a deposition, counter medical adversaries or IME testimony, provide chiropractic information in lay terms, back up your statements with documentation, and present a professional and credible image.

*** Keep a positive mental attitude. There is no way you will totally eliminate the stress that comes with being sued. "Malpractice stress syndrome" is a well‑documented reaction that can devastate doctors for years. If necessary, seek professional counseling to help you handle the emotional turmoil that may occur. Learn ways to channel anger or fear properly, without directing your negative emotions to family, friends, staff members or other patients.

*** Continue bringing chiropractic care to your patients. Although your schedule may be disrupted, don't let the legal proceedings keep you from bringing the miracle of chiropractic care to as many people as possible. The vast majority of your patients are good, loyal members of your practice and deserve the best care you can give them. Don't let one negative experience sour you on chiropractic or make you suspicious of your other patients.