Practice Perfect: Compliance and Risk Management

American Academy of Ophthalmology Web Site: www.aao.org
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When Litigation Looks Likely, Use 5 Keys to Lawsuit Survival

By Chris McDonagh, Associate Editor

For physicians in today’s litigious society, lawsuits seem to have become an occupational hazard. Litigation may involve an allegation of malpractice, a disgruntled employee or, less commonly, a business matter. Whatever sparks the dispute, you’ll be more likely to have a successful outcome if you are sensitized to certain issues.

First of All, Gather the Facts
“If a situation arises that looks like it might result in litigation, you have to start a logical orderly process of gathering the facts,” said Bruce Goldstein, JD, a founding partner of Wade, Goldstein, Landau & Abruzzo PC of Berwyn, Pa. This means identifying all the people, documents and conversations that might be relevant to the dispute. Attorneys can’t provide you with their best advice unless you have painted a complete and accurate picture of what happened. Although attorneys are skilled at searching through all this evidence for key facts, they will do that quicker if you provide them with a timeline or short narrative that summarizes the situation.

When briefing your attorney, err on the side of full disclosure. Attorneys may be able to base a strong legal argument on a memo or phone call that seems insignificant to you.

Don’t ignore damaging facts. “You may feel uncomfortable talking to your attorney about a particular matter—a damaging memo, perhaps—but the sooner you do so, the sooner he or she can craft a legal strategy that minimizes any potential damage to your case,” said David M. Laigaie, JD, an attorney with Miller, Alfano & Raspanti PC of Philadelphia. “Otherwise, you may be six months into the case when the memo raises its ugly head, and all of a sudden the attorney’s strategy and your $30,000 of legal fees are all down the drain.”

It may take a third party to discover the whole truth. “Even when you think that you know all the facts, it often turns out that there’s more going on than meets the eye,” said Mr. Goldstein. “It may sometimes be helpful for your attorney to speak with your employees without you being present,” added Mr. Laigaie. “Because sometimes, what I learn from speaking to employees outside the physician’s presence is different from what I would have learned if the physician had been there. Even if you have no intention of shading an employee’s story, your mere presence may do so.”

Don’t pull a Martha. When Martha Stewart was prosecuted, she wasn’t charged with insider trading, which would have been difficult to prove; instead she was charged with obstruction of justice. “And because she had cooked up a cockamamie story, she ended up doing five months in jail,” said Mr. Laigaie. Any attempt to destroy, hide or surreptitiously change documents will only make you more vulnerable. “If you feel compelled to alter your medical records, do the alteration as an addendum and note the date that it was altered,” he said.

5 Keys to Lawsuit Survival
Once a lawsuit is under way, you can minimize the expense and frustration of litigation by keeping some pointers in mind.

1. Make your decisions dispassionately. “As the critical decision maker, you need to put your emotions to one side and consider how a neutral observer or a set of jurors would perceive the situation,” said Mr. Laigaie. “You should approach a litigation decision in the same way that you would any other business decision,” added Mr. Goldstein. “Think through the best-case and worst-case scenarios, consider the dollars involved and then make a rational business decision."

2. Don’t let costs spin out of control. You could be in for the long haul, so clamp down on expenses sooner rather than later.

When you are charged an hourly rate, it is worth asking how the meter is calibrated. Suppose the minimum billing unit is 15 minutes—four three-minute phone calls would cost you an hour of your attorney’s time. If you can’t persuade your attorney to bill you in smaller increments of time (a tenth of an hour wouldn’t be unusual), then you should try to consolidate those four questions into a single phone call.
Before picking up the phone, ask yourself whether you really need to speak to an attorney. If you have a routine question or request, it would be cheaper to contact the attorney’s support staff instead. And, often, your insurance company will have a risk management department that may be able to answer your questions.
Request that your attorney periodically provide you with an itemized bill.
In a multiphysician practice, you should consider entrusting one partner with a level of decision-making authority about the case, said Mr. Goldstein. “Suppose, for instance, a practice with five partners decides not to do that. All five partners will want to be involved in each decision, they will each want to talk to the attorney, and those legal bills will start racking up.”

3. Ensure events on the witness stand go as planned. The testimony of witnesses can be critical in the outcome of the court case.

If you need to select expert witnesses, their “personality is as much of an issue as their substantive knowledge,” said Mr. Goldstein. “If they can’t sit through a deposition or talk to a judge, then their expertise doesn’t matter.”
If you are required to take the stand yourself, make sure that you are thoroughly prepared. This will involve your attorney “asking you to go over the facts again and again, and that can be frustrating,” said Mr. Laigaie. “But unless your recollection of the facts has been questioned and challenged from different perspectives, you won’t be prepared to have another attorney grilling you about those same facts.”

4. Minimize the emotional toll. There are costs of litigation that you won’t find itemized on your attorney’s monthly bill. Litigants note feelings of anger, inner tension, insomnia and, especially for physicians accused of malpractice, reduced self-confidence. You can take steps to minimize this emotional toll by, for instance, temporarily reducing your patient load. This frees up time to spend with friends, family and hobbies—all critical ways to relieve stress.

5. When you get close to an acceptable solution, take it, said Mr. Laigaie. “Commercial litigation should not be waged on big principles. It is an economic decision that you are making, so when you get to a point in litigation where there’s a resolution that makes sense, take it—know when to take ‘yes’ for an answer.”

3 Ways to Avoid Lawsuits

Heed the warning signs. “Many lawsuits come out of circumstances that were right under everybody’s nose, but people were too uncomfortable to confront the problem” said Mr. Goldstein. Other lawsuits arise when patients or employees feel that they have been dealt with unfairly. “You need to address complaints,” he said. “Even if you don’t think that they’re legitimate complaints, you need to address them rather than blowing them off.”

Use documentation to protect your practice. Suppose, for instance, you are accused of wrongfully dismissing an employee. If you can demonstrate with objective facts that you fired that person for a legitimate reason, you may be able to head off the threat of litigation, said Mr. Laigaie. “The former employee’s attorneys are going to ask for documentation,” said Mr. Goldstein. “They’ll ask, ‘Where’s the memo that states there’s a performance problem? Where’s the file note that says you spoke to the employee about the issue? Where’s the performance review? Where’s the notice of probation?’” If you don’t have that documentation, you lack objective evidence that you fired the employee for legitimate reasons and that vulnerability can make you a target for litigation. Another key document is the employee handbook. You can preempt a lot of potential litigation by asking your employees to sign an acknowledgment that they have read and understood the handbook.

Consider alternative means of dispute resolution. Alternatives to a full-fledged court case include mediation and arbitration. In mediation, a trained facilitator helps the disputants try to resolve their differences in a mutually satisfactory way. Less adversarial than litigation, this is a useful option for disputants who will continue to have a relationship with one another. If mediation comes to naught, the parties can still resort to litigation. In arbitration, the disputants agree to let an arbitrator (or a panel of arbitrators) resolve their dispute. Arbitration can be either nonbinding—in which case the arbitrator’s decision is purely advisory—or binding. Arbitration is typically cheaper and quicker than going to court.

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Further Reading: For a free library of litigation-related articles, visit the Web site of the Ophthalmic Mutual Insurance Company at www.omic.com.

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