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How to Fight (and Hopefully Win) Your Medical Malpractice Lawsuit


As a doctor, it is good practice to maintain records of every patient that you treat. When a medical negligence lawsuit is brought against you, the claimant’s attorney will look for weak spots in your records to use against you.

When entering professional practice, doctors make a simple, yet troubling truth:

You are more likely than not to face a medical malpractice lawsuit at some point in your career.

For most, the initial shock value of this realization lies in the risk of major financial loss. But you can address this proactively by finding the right medical malpractice policy for your specialty.

However, the impact a lawsuit has on your professional image is much more difficult to manage. Whether the suit is credible or not, your reputation may suffer due to the publicity it receives. And if someone wins a suit against you? Well, your career as you know it could very well  be left in tatters.

An accusation of malpractice is among the most daunting experiences a physician can face. These lawsuits often arise from errors in the diagnosis, treatment and management of illnesses by practitioners. But that doesn’t mean you’re out-of-luck. Here’s everything you should (and shouldn’t) do to set yourself up for success when your day in court comes.

Initial steps to take following a malpractice lawsuit

First things first — contact your medical malpractice insurance provider. Your insurer will assign you:

  • A claims representative  who will coordinate your case.
  • A professional liability attorney who will defend you.

Between the two of them, they will review and organize all relevant medical records and other pieces of evidence to prepare for your case.

Winning strategies in malpractice lawsuits

Be candid with the attorney assigned to you by your carrier. Provide any and all medical records that may help water down the plaintiff’s claim.

Similarly, identify expert witnesses who will testify for you. Often, medical malpractice lawsuits require the expertise of medical professionals. These individuals act as witnesses to either prove your liability or innocence.

But doctors rarely testify on behalf of the plaintiff in medical malpractice cases. (They simply do not want to implicate their peers or themselves.) This will make it difficult for the plaintiff’s legal team to find expert witnesses to testify against you. In fact, it could actually tilt the case in your favor. If possible, assemble a team of expert witnesses who are willing to provide credible testimony on your behalf.

What other relevant exhibits can you develop to tilt the case in your favor? In this regard, you should uncover available documents relating to the plaintiff’s treatment. Never alter the records in any way, shape or form. This will significantly compromise your credibility — if not destroy it altogether.

It’s worth noting that less than 10% of medical malpractice lawsuits actually reach a jury. This should add a sense of urgency to get the claim dropped or dismissed before it proceeds to trial.

It is advisable that you work with your attorney to have the lawsuit dismissed or dropped on legal grounds. These may include:

  • Previous bankruptcy filings by the plaintiff.
  • Violations of the statute of limitations about medical malpractice lawsuits in your state.

Your lawyer could even argue that the case against you fails to outline a recognized malpractice claim.

How to handle depositions in your case

The deposition stage exposes the weaknesses and strengths of both sides.

If you display confusion or belligerence, the claimant’s lawyer may launch an attack on your credibility. (And it may work.)

That’s why you must carefully review the plaintiff’s medical records. If you are not adequately prepared to discuss each and every aspect, it will show.

You should also be ready to explain your justification for treating the patient the way you did. This is especially important if your actions conflict with long-established practice guidelines. During the depositions, remain calm and consult the records whenever you are in doubt.

Proving that you were not negligent

Proving negligence in medical malpractice cases is difficult. As a doctor, it is good practice to maintain records of every patient that you treat. When a medical negligence lawsuit is brought against you, the claimant’s attorney will look for weak spots in your records to use against you.

Having well-kept records about your patients is the first step towards proving your innocence. For example, say you stray from the the directions of medical textbooks about diagnosing and treating specific illnesses. The case against you can still be dropped if your records prove you did not deviate too far from the norm.

In the medical field, there’s rarely a single way of doing things. Doctors are often at their their best when diagnosing and treating different illnesses. Similarly, every patient is subject to a unique outcome — no matter how slim the possibility may be.

Unless you committed an obvious mistake when handling a patient, you can argue that:

  • You did your best.
  • You acted in good faith.

After all, doctors are prone to human error, too.

Key takeaways

Medical malpractice lawsuits are more complicated — and common — than most people realize. Fortunately, there are plenty of ways to prepare for this worst case scenario:

  • Be proactive. Before you know a lawsuit is possible and after it’s been filed.
  • Know your stuff. Study with the same vigor as you did for your MCAT exam.
  • Tell the truth. If you are in fact found guilty of negligence, at least your integrity will still be intact.

Needless to say, protecting yourself from a medical malpractice lawsuit doesn’t begin after it’s been filed. It starts right now.