5 Things You Didn't Know About Lawsuits

Most of you have never been sued, so it's hard to know the nuances of the lawsuit process. Well, that's ok. Let's go behind the curtain to discover some of the hidden facts about medical malpractice lawsuits. 

1. You can choose your lawyer--sort of

When you get sued, you need a lawyer. Your insurance company will assign you a lawyer, but here's one thing many people don't know-- you have a say in choosing your lawyer. The insurance company has a roster of attorneys that they work with; in a major metropolitan area, there are probably several to choose from. If you didn't feel great about your attorney after your first meeting, you're entitled to ask your insurer for a different attorney. A good lawyer is a critical factor--perhaps the most critical factor--in determining the outcome of your lawsuit. Be sure to examine your attorney's credentials, amount of experience with medical malpractice, and general acumen. You're going to be spending a lot of time with them, so it's also important to consider the chemistry between the two of you.

2. You can't talk to your expert witness

When you're a defendant, you might consider your expert witness as someone who's "on your side", so you may be surprised to learn that you're not allowed to talk with them. Why is that? It's because communication between you and the expert witness isn't protected by lawyer-client privilege, so anything the two of you discuss is open to discovery. If the opposing attorney believes that there has been some communication between you and your expert, they could subpoena that.   

3. Your lawyer works for the insurance company

You don't pay a dime for your attorney's services--it seems too good to be true. And indeed it is. Your lawyer gets paid by the insurance company, and therefore, he/she needs to consider the interests of the insurance company. This sets up an unusual dynamic: your reputation's at stake, but the insurance company's putting up the money. And sometimes the interests of the insurance company may not align with your interests. For example, after the discovery phase is complete, you may feel that you have a strong case, and you want to take the case to trial. However, the insurance company may push you to settle because it doesn't want to be tangled in an expensive undertaking with an unpredictable outcome. The final decision usually rests with the defendant, but the insurer will be sure to push their position if they feel strongly about it.

4. Things take forever

Anesthesiologists are accustomed to rapid action and rapid reaction, so you'll be bewildered by all the motions, continuations, and delays that can drag a case out for months, if not years. Dealing with a lawsuit requires a drastic change of your mindset and a major recalibration of your expectations.  

5. Your reputation can't be used in your favor

You think you're a pretty damn good anesthesiologist, and you're pretty sure the surgeons and nurses feel the same way. So, how about having your colleagues testify on your behalf? Wouldn't that help your case? After all, it seems logical that a highly competent physician is less likely to make a fatal mistake compared to a not-so-competent physician. But, your colleagues probably won't be testifying at your trial. Here's the reason: when you invite people to comment on your qualifications, you're also inviting a debate about your qualifications...what if the plaintiff produces some unexpected witnesses who claim that you're a terrible anesthesiologist? This then becomes a "case-within-a-case", i.e. you've created a forum on your overall competence, which is not what's at issue in the lawsuit--what's really at issue is whether your actions in the case were consistent with the standard of care.