By Vanessa Orr
There aren’t many life circumstances that generate more stress or disruption for healthcare professionals than allegations of malpractice. These assertions can lead to a number of stress-related issues including anger, depression, anxiety, and even physical illness. And though it often comes as a shock, it’s important to know what to do when it happens.
“Most often, a healthcare professional will receive a letter or a request for records, which may come from a patient or the patient’s attorney,” explained Tom Murphy, managing director, Brown & Brown. “This is a tell-tale sign that they may be exploring the avenue of a malpractice claim. A practitioner may also notice that their patient is saying that they are unhappy with their treatment or the outcome of that treatment and may be considering pursuing the issue.”
At this point, healthcare professionals need to notify their practice carrier immediately so that the carrier can walk them through the malpractice process.
“In Florida, this can be a very drawn-out process because of the statute of limitations; medical malpractice claims are very technical and there are a lot of components that can cause claims to drag out for years,” said Murphy, noting that he has seen some cases last as long as seven years.
“This is why it’s also imperative to have a reputable malpractice carrier,” he added. “They won’t throw you under the bus just to settle your claim.”
He adds that practitioners should only discuss the issue with a carrier attorney or their personal attorney so as not to say or do anything to jeopardize their defense. “You don’t want to inadvertently waive the statutory privileges that you have with your claims representative or attorney,” says Murphy of this privileged communication.
It May Not Be a Lawsuit
Just because an attorney has requested patient records doesn’t necessarily mean that there’s going to be a lawsuit. Attorneys request records all the time, often for issues unrelated to malpractice. For example, the patient may have been in an accident and needs his or her medical records to pursue that case against the auto insurers.
“Typically, when a doctor or medical provider receives a request for records, they can recognize that it is for a claim or is completely unrelated,” said Murphy. “Still, when you get these requests, log them and notify the malpractice carrier right away; get their counsel involved.”
If a patient is pursuing a malpractice case, the healthcare practitioner may receive a Notice of Intent (NOI) document. In Florida, practitioners have 90 days to respond to the NOI; if they do not, it could result in a default judgement.
The final and most important document that the practitioner will receive is the Summons and Complaint—the actual lawsuit—which will be served by hand.
“That’s when you know it’s the real thing,” said Murphy. “In some cases, you may not receive the NOI or request for records; you may just get the lawsuit. It can be a shock.”
In this case, the carrier should be notified immediately so that they can respond quickly—typically within 30 days. Once the lawsuit is in place, the discovery process gets underway to allow attorneys to investigate and determine the facts of the case. Interrogatories take place with both the defense and plaintiff’s attorneys questioning the opposing side on matters that may affect the case, and all parties in the lawsuit are required to take part in these depositions unless the lawsuit is settled or dropped by the court for any number of reasons.
“The carrier is there to not only educate you on the process, but to prepare you for the deposition,” said Murphy. “This is why it’s so important to have a reputable carrier—they will always hire the best defense attorneys and provide you with the best defense in a claim or lawsuit.”
For more information, contact Tom Murphy at (561) 459-2879 or tom.murphy1@bbrown.com.
