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A Doctor’s Toolkit for Medical Malpractice Defense

What should a physician do if a complaint is filed against them?

With every patient’s live in their hands, doctors have to be held to a high standard. But should we demand perfection out of our physicians?

“There are certain requirements a plaintiff needs to meet before they sue a doctor or a hospital,” says medical malpractice defense attorney Lisa M. DeLeon. “The public policy reasons behind this are the state and the law recognize that doctors and hospitals have difficult jobs, and so anyone going after them must meet procedural and factual requirements.”

For example, when a patient wants to sue a doctor, the case must be reviewed by another doctor to ensure that the case is meritorious. This is in place to prevent doctors from dealing with frivolous lawsuits. “Theoretically, by the time the case gets to us, it should have passed the stage of frivolous law suits,” says DeLeon. “Occasionally, a frivolous case slips through and we do our best with what we are given. If a doctor does make a mistake, our first line of defense is liability. We assert that our doctor and hospital provided the patient with, and complied with, the proper standard of care.”

Many arguments center around causation. This means that, even if the doctor made the error, it may not have been the cause of the injury.

“Sometimes clients will contact me before the suit has been filed, and we can advise on how to handle it,” says DeLeon. “If there is a suit, we can handle any and all aspects of the dispute within the court systems. If there are privilege issues, we facilitate those discussions and settlements.”

A common fear in any legal proceeding is how to pay for it. In DeLeon’s work she, typically works through insurance companies. “Occasionally, hospitals are self-insured, and our contact person is a hospital administrator rather than a third-party insurer,” she says. "For the most part, our fees our paid by insurance companies."

Lawyers are, most likely, not physicians. But they still control the flow of information in these cases. “We handle pretty much every area of medicine,” says DeLeon. “In defending a variety of physicians, with various different specialties and hospitals that attend to various ailments and procedures, we must handle everything. All of our attorneys here have a good working knowledge of medicine. But, as part of our defense, we retain expert witnesses as soon as we can to ensure we are moving forward on the most solid ground.”

For example, if a case involves a very complicated intricate gastrointestinal procedure, an attorney would find an experienced gastroenterologist that can bring them up to speed. “When we are taking depositions and litigating the case further, we have a good working understanding of not only the medicine but our best strategy for the case,” DeLeon says of the use of experts. “We know the questions we want to ask, and points we want to stress. We coordinate with experts on what we need to avoid as well.

“Doctors are extremely intelligent people who have incredibly difficult jobs, and to be accused of being professionally negligent is an intensely difficult situation,” DeLeon continues. “They have devoted their lives to helping others. They are thrown into situations where they are sued or giving depositions or being questioned in hearings.”

That being said, in every situation, they should be represented by a reputable and experienced attorney.

For more information on this area of law, see our overviews of personal injury and medical malpractice.

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