LETTER OF THE LAW

Living With Litigation

Here's some advice on how to react — and what steps to take — when someone sues you or accuses you of wrongdoing.

By Joseph W. Gallagher, Esq, LLM, and Mark E. Kropiewnicki, Esq, LLM

Unfortunately, litigation and lawsuits are very real possibilities for most ophthalmologists at some point in their practice lifespan, and they're an economic fact of life in the modern practice of medicine. In many ways, litigation and lawsuits are simply a cost of doing business; however, when it happens to you, it doesn't feel like just business. For ophthalmologists, legal actions can range from claims relating to alleged malpractice to contractual breach, governmental regulation and everything in between. Here's what you need to do to protect your practice.

Don't panic or make it personal (even if it is). No one likes getting sued or being told by a government agency or other party that they've done something wrong, but panicking does no good. Yes, there will be plenty of anxiety, fear and even anger, but you need to remain calm and controlled. Reacting with your emotions and ego will cost you in the long run. Just as when you're performing surgery, now's the time to proceed with cool, dispassionate resolve.

Respond in a timely fashion. Don't delay in responding to a lawsuit or claim. Litigation is a serious matter and must be dealt with accordingly. If you're sued or threatened with legal action, there may be a simple solution that can resolve the matter or prevent it from escalating. More importantly, it's often difficult or impossible to remedy a situation if you fail to answer a complaint or allow a court order to be entered against you without opposing it. Whatever you do, never ignore legal action, and always respond quickly.

Assess your exposure. You should be able to quickly determine if you're insured for the claim asserted. If you have malpractice insurance that covers the liability in question, you have duties and obligations under the policy that require you to take certain steps when you become aware of pending or potential legal action. If you don't meet the requirements, you could be left without the protection you need. You should begin by immediately notifying the insurance company in writing, even if you've not yet been sued. Find out if your policy lets you participate in choosing your lawyer. Stay involved and informed throughout the process. If your policy doesn't allow you to hire your own lawyer, consider hiring a lawyer to work in tandem with the insurance company. We've heard horror stories about frivolous claims being settled by insurance company lawyers who got "cold feet" on the eve of trial.

If you're not insured, quickly determine your next step. If you believe that you may not be insured for the claim being made (for example, a personnel matter or Medicare claim), you should do due diligence to understand the legitimacy of the claim. Be wary of proceeding without proper legal advice, as there are many conversations and other actions that you later may wish were protected by confidentiality rules.

Select the right lawyer. Medicine is a highly regulated field. You need an attorney who is familiar with your world, and who has direct experience related to the specific action against you. Don't hire your college roommate just because he's the only attorney you know. After all, you wouldn't go to an optometrist to handle a lesion in your eye. Your own practice lawyer may be helpful but is most likely not a trial attorney (and may become a witness, depending on the issue involved). In today's highly mobile world, trial lawyers handle cases all over the United States, so don't confine your search to local lawyers. Find a litigator who has the knowledge and skill set to handle your precise situation, and be sure he's someone you can trust and talk to openly.

Buy an evaluation. If you don't have insurance, seek an evaluation and opinion from a qualified attorney. The lawyer will need to review documents and conduct research to properly advise you. He should be able to give you a flat rate for this initial step. Don't agree to an hourly rate yet. Starting out in a narrowly defined manner also allows you to evaluate the lawyer and assess whether you'll work well together.

Request a budget. As part of the opinion, request a budget. If your lawyer tells you he can't give you one because the matter is too difficult to predict, get a new lawyer. What the lawyer is really telling you is that he hasn't handled enough cases to be able to accurately predict how the case will proceed. A lawyer with the right experience should be able to explain to you the stages of your case and estimate the fees and costs involved in each stage. Your lawyer should be willing to put that opinion in writing. This is not a guarantee. Rather, you're buying a prognosis. Outcomes vary depending upon the circumstances, and not all of the circumstances may be known at the beginning of your case. While a fixed budget might seem preferable, it's quite unlikely that a lawyer with the knowledge and experience that you need will agree to handle your entire case for a flat fee.

Explore mediation or arbitration. Preparing for and taking a case to trial is both time-consuming and expensive. There are many alternatives to "going to court," known as "alternative dispute resolution (ADR)." Mediation and arbitration are two such options. Both have advantages and disadvantages. The primary advantages are that they are faster and less expensive. Sometimes, all sides must agree to use ADR. Sometimes ADR is required. Request that an evaluation of these alternatives be included in your initial case evaluation. Request, too, that the lawyer give you a budget for "going to court" and a comparative budget for ADR.

Learn From the Experience

If you're the target of a lawsuit, remember the pointers discussed here as you come to grips with the situation. Also, keep the experience in perspective. Try to learn about why you were sued. Think about possible changes you could implement to avoid future legal action. Certainly, prepare yourself so that if you're faced with the same set of circumstances, you'll be better protected. In other words, learn from your mistakes and don't repeat them. nMD