Despite your best risk-management efforts, one of your patients is suing you for malpractice. When your professional reputation is on the line, you can't afford to be unsure about your role in the legal process. Here's what you should avoid.
by Keith Henaman in Malpractice Defense on Friday, September 02, 2016
Since you can’t wave a magic wand and make it all go away, you did the next best thing – you called NCMIC’s Claims Advice Hotline. With more than 70 years of experience in providing top-level legal assistance to doctors just like you, our experts were able to assure you that you’re in the best possible legal hands.
You have an attorney working toward a defense verdict, but the process is going to take a while. You have no idea what your role should be. Should you sit back and wait, or jump right in and help? Is it better to offer information, or wait until you’re asked? And those records aren’t quite complete – should you spend your time making them “just right”?
When your professional reputation is on the line, you can’t afford to be unsure about your role in the legal process. At NCMIC, we’re fortunate to not only have at our disposal some of the best professional liability attorneys in the country, but also Doctors of Chiropractic who function as expert witnesses in high-profile malpractice cases involving D.C.s.
Here are frequent errors that adversely affect outcomes for Doctors of Chiropractic:
1. Altering patient records. It’s a natural response – you find out you’re being sued, you panic, and you go back to the patient’s records to make sure documentation is complete and accurate. To your dismay, you find your records are not nearly as complete as you would like.
How much would it hurt to go back in and make a few extra notations? You have the same pen, there’s room on the page … STOP! Never, ever alter patient records. It doesn’t matter if they’re handwritten or computer-generated. Forensic document examiners are specially trained to spot even the tiniest alterations, and if you change your records, you’ll almost always be caught.
There’s no faster way to damage your credibility in a court of law than for a plaintiff’s attorney to stand in front of a judge and jury and prove you lied.
2. Withdrawing from the preparation process. During your early meetings with your defense team, you may be confused and frightened. That’s natural. But it’s crucial to be an active participant from the outset. That’s not to say you should step in and take charge. In fact, you need to realize and accept the fact that your attorney is the point person in this aspect of your life. (That can be difficult for doctors because you’re used to being the decision maker.)
“Shutting down” and expecting your defense team to do your work for you or saying you’re “too busy” to be bothered with preparations won’t benefit anyone, least of all you. As the chiropractic expert, it’s up to you to quickly provide the tools your attorney needs to help your legal team understand what you do, how you do it and what happened during the course of the incident in question.
3. Talking too much to outsiders about the case. As you prepare for trial, don’t discuss the case or seek opinions from colleagues, experts or others in the business community. It’s not worth the risk.
Case in point: A D.C., who faced malpractice allegations, “vented” during a business owners' breakfast club. He made disparaging comments – and used vulgar terminology – about his patient without realizing a family member of the patient was in attendance. The comments made their way back to the patient and her attorney, and ended up being mentioned in court, where they adversely impacted the jury’s impression of the doctor.
If you need to vent to someone other than your attorney, talk to a spouse, significant other, close family member or NCMIC.
4. Changing your story. Always, always stick to the version of events you presented during your interrogatory, even if the opposing attorney is trying to trip you up.
Don’t deviate from the truth. As the saying goes, “If you tell the truth, you’ll never have to remember what you said.”
5. Dressing inappropriately. Your attorney most likely will apprise you of basic ground rules: Dress in clothing that is high quality but a bit understated. Flashy watches and jewelry also should be avoided: An expensive watch with a plain band is perfectly appropriate, as is a wedding ring – but leave any large diamonds or gold nuggets at home.
If you dress in an ostentatious way, it cheapens your image and may send an “I can afford anything” message to the court.
6. Allowing yourself to become “rattled” on the witness stand. Adequate preparation is the best way to avoid becoming visibly disconcerted. You send the most positive message when you appear calm, cool and collected; appearing nervous can send an “uh-oh, he or she has something to hide” message to the jury.
Cooperate fully with your lawyers in practice sessions to formulate answers to even the toughest queries. Allow yourself to be videotaped, and study the results. If your attorney feels you need extra coaching, don’t take it personally; look at it as one more opportunity to help your team achieve a defense verdict.
7. Being a know-it-all on the stand. There’s a fine line between portraying yourself as an educated, experienced professional … and appearing as though you’re trying too hard to be those things and more. When you’re asked a question, answer it – then stop.
If, for example, the plaintiff’s attorney asks why you chose to perform a particular adjustment, provide your answer, but don’t elaborate with a 10-minute monologue on the vertebral system.
8. Answering questions too quickly. Take your time when answering questions on the stand. Some witnesses believe hesitating on the stand will make them appear less than competent, but the opposite is often true: Pausing for a few moments indicates that you’re putting some thought into your answer.
9. Failing to ask for clarification. When an attorney asks a question you don’t understand, ask for clarification immediately. Again, some witnesses believe this will cause them to appear incompetent. However, answering a question that you don’t understand can result in a less-than-positive message to the court.
10. Failing to speak directly to the jury. When an attorney asks you a question, resist the natural tendency to direct your response back to the attorney. Look at the attorney when the question is asked, but when it’s time for you to speak, look directly at the jury or the judge.
Making eye contact helps you appear genuine and will build rapport. Juries are less likely to find against the defense when the doctor is someone the jury members see as being “likable.”
Remember that NCMIC’s claims specialists are here to help. As a policyholder, if you’re notified of a claim or would like to discuss a troubling situation, please call the NCMIC Claims Advice Hotline at 1-800-242-4052.