Jrnl.Prac.Psych.and Behav.Hlth.November 1999357 - PDF document

Jrnl.Prac.Psych.and Behav.Hlth.November 1999357 can’t think of many worse experiences.Someonelooking paper that says “You have been sued.”Atthat point,it’s a done deal.You can’t change any-thing clinically,and you’re locked into a process that maytake years.It’s even bad when you’re sure you’re going towin and an insurance company will pay if you don’t.Thedollar cost is not the most expensive part:emotional,time,and energy costs are almost always substantial.Call your lawyer and your insurance carrier.* Rightnow.And do everything they say.for your patient,don’t make any statement about the case,no matter how much you think it may help,to anyoneexcept your lawyer,your insurance carrier,and maybeyour spouse.Don’t contact the plaintiff or anyone associ-ated with the plaintiff.Don’t discuss the clinical case,eveninformally,with any other defendant or person associatedwith the patient’s care unless your lawyer says it’s O.K. WILLIAM H.REID, MD, MPH Dr.Reid is a forensic and clinical psychiatrist in Horseshoe Bay,Texas,and a past president of the American Academy of Psychiatryand the Law.He maintains an educational website,Psychiatry andLaw Updates,atwww.reidpsychiatry.comA Clinician’s Guide to Legal Issues in Psychotherapy,is avail-able from Zeig,Tucker & Co,Phoenix,AZ.This column contains gen-eral clinical and clinical-forensic opinions which should not be con-strued as applying to any specific case,nor as any form of legal advice. * You insured,aren’t you? In this column,I take the simplistic positionthat you have malpractice insurance and regularly review your policy to besure it covers everything you do.It is interesting to talk philosophicallyabout “going bare,”but I don't recommend it.Clinicians who believe they aretain they have coverage that puts them,not the organization,first (seebelow).Therapists who believe they practice under some form of government“immunity”should know that plaintiffs’ lawyers have made a science of find-ing ways around immunity statutes. suing you or has officially threatened suit. I Some lawyers and malpractice carriers believe that a carefully writtennote after,for example,a patient’s suicide can be helpful in a later lawsuit.One should be sure such notes are accurately dated and timed and are objec-tive rather than appearing obfuscating or defensive.. 358November 1999Jrnl.Prac.Psych.and Behav.Hlth. LAW AND PSYCHIATRY Your LawyerYour lawyer should be one who is experienced in mentalyour interests before anyone else’s.In most situations,youwill want a lawyer who is not representing any otherdefendant in your case (such as another clinician or anagency,clinic,hospital,or employer).Counsel for a publicagency,for example,may have no duty to an individualemployee,and must always act in the best interest of theagency.The same principle applies to private hospitals,clinics,and insurance companies (with a general excep-tion for lawyers retained to defend you by your own mal-practice carrier).If your primary defense is being handledby your employer’s attorney,consider hiring a lawyer tomonitor that person.The “monitoring”lawyer often needfee.Fortunately,codefendants (and their lawyers) don’tusually sabotage each others’ cases,even though theyoften have differences in potential liability,responsibility,and contribution to damage,and in available money for ajudgement or settlement.A hospital or governmentstaff by blaming everything on one clinician unless he orshe really is entirely at fault.The defense lawyers usual-ly work together and share talent and information.Thereare exceptions,however,and money is a powerful motiva-tor.Defendants accused of criminal behavior or sexualindiscretion,if strongly implicated,should not expectpleasant treatment from their codefendants.lawyers’ and carriers’ hands and go on with their lives,of it.Most mental health professionals aren’t made thatway.It may help to remember that by the time the lawsuitnotice is received,the relevant clinical work has been overfor months (or years).You are now in the legal arena.Letthe lawyers do their thing,help them,and try to avoid sec-ond-guessing your clinical decisions.Help Your AttorneyYour lawyer is likely to ask you to do some of the spade-work for your case,such as literature review andresearching your records.Following your lawyer’s advicecomes under this heading as well.Communicate well (anddemand the same of your lawyer),satisfy yourself thatyour interests are being protected,and don’t be a .If you believe you are being inadequately repre-sented,take appropriate action;beyond that,don’t try torun the show.In many jurisdictions,the plaintiff’s attorney is requiredto notify you that he or she is considering a lawsuit.Whilescary,this is a good thing,since it gives your lawyer achance to convince the potential plaintiff that it’s a badidea.(This is your lawyer’s job;do not try to do it yourself.)Notice letters often include requests for communicationor records.Don’t ignore the letter,but do not accede to therequests without a lawyer’s advice,no matter how innocu-ous they seem.Refer all questions,orders,or other com-munications from the plaintiff or plaintiff’s lawyer(including phone calls) to your own lawyer or malpracticecarrier.You probably shouldn’t even provide the name ofyour malpractice carrier;let your lawyer or insuranceYou should consider calling your insurance carrier(such as a suicide or other bad treatment outcome,espe-ily).Your policy may require that you not wait for official“notice”if you have reason to believe a suit is likely.rates,and your local agent can often provide good advice.Incidentally,in many states a malpractice suit cannotbe filed until the plaintiff’s attorney submits a report oraffidavit from an independent clinical expert who agreesthat the allegations have some merit.Don’t take too muchcomfort in this bit of lawsuit “reform,”however.A fewlargely by churning out such affidavits “boilerplate”style. Your lawyer should be one who is expe-rienced in mental health malpractice Jrnl.Prac.Psych.and Behav.Hlth.November 1999359 The Complaint or PetitionThe “complaint”or “petition”is the initial legal documentthat summarizes the plaintiff’s allegations.It is terriblydiscouraging.It doesn’t say that you have made amistake;it says you ;there were a dozen of them;theywere all whoppers;they damaged the patient horribly;and you were reckless and uncaring in the process.Itdle of the night,the hard work you did during that last cri-sis,or all the other patients and families who appreciatewhat you’ve done for them.It doesn’t give you any creditfor trying to help your patient,but assumes that you hadvirtually no interest in his welfare.The plaintiff mustprove the case against you,but explaining and defendingyour actions,and convincing the jury that you are not theworst clinician since Josef Mengele,is your job (throughyour lawyer),not the plaintiff’s.Is that fair? Well ...yes.Remember that ours is anadversarial system.Assuming the plaintiff honestlybelieves you were negligent,he or she is entitled (withinreason and certain rules) to vigorous pursuit of the claim.By the same token,your lawyer has a duty to defend youwith the same vigor.You can usually expect the plaintiff’slawyer to treat you civilly in person (such as at depositionor trial),but that’s sometimes just to make you feel com-fortable enough to let down your guard.Don’t take it per-sonally.lawsuit to the other which must be answered,or any lackof answer explained.The plaintiff will send interrogato-ries through your lawyer,who will need your help toanswer them.Expect questions about the case,but alsoabout such things as your insurance,finances,education,practice,past problems,and other topics.Your lawyer willsome reason (such as those that are unduly onerous) andwill help you deal with the others.Expert Witnesses or ConsultantsClinical expert witnesses or consultants may be retainedwhich the lawyers hope will support their cases.Thecase and may discuss defense strategy.He or she usuallyand,although rarely a lawyer,should understand the clin-A good expert works for your attorney,not for you.Hisor her usefulness depends on experience,objectivity,andcredibility.That means the expert may not come to anopinion which supports you,even though your lawyer orinsurance carrier is paying (sometimes a lot) for his or hertime.Your attorney will use the expert’s findings to assessthe strengths and weaknesses of your case,plan the liti-gation,and perhaps assist in settlement negotiations.each side to discover the strengths and weaknesses of theother’s case.The civil system is designed to prevent last-minute Perry-Mason-like surprises.Unless your case isdismissed or settled at an early stage,the plaintiff’slawyer will have an opportunity to ask you questions,under oath and in a setting as binding as a court,aboutprotected by lawyer-client privilege.Your lawyer will havea chance to do the same with the plaintiff.Any potentialwitness may also be deposed (and usually is),whether heor she has personal observations to share (a “fact wit-ness”) or is scheduled to offer expert opinions (an “expertMediation and Arbitrationlegal disputes quickly and inexpensively,sometimes evenbefore a lawsuit is filed.In ,the parties negoti-ate much as they would for a settlement (see below),butretired judge).Successful mediation leads to an outcomethat is acceptable to both sides.is more “legal-istic,”usually involving a binding decision by a judge orother official arbiter.While either process may be prefer-able to a trial,arbitration is sometimes criticized for itswin-or-lose outcome in the absence of a court’s dueprocess.Some states and malpractice insurance policiesbefore continuing the lawsuit process.By the time evidence has been exchanged,the expertshave rendered their reports,and the fact and expert wit-nesses have been deposed,the two sides know a great dealabout each other’s cases.There may be good reason to set-tle the case and avoid a trial.Trials,after all,are veryexpensive and bring with them a greater or lesser chance Depositions are opportunities for each sideto discover the strengths and weaknesses 360November 1999Jrnl.Prac.Psych.and Behav.Hlth. LAW AND PSYCHIATRY of losing.A settlement may be negotiated at any time afterthe suit is filed,even (and not uncommonly) during thetrial itself.dants who want their “day in court,”but the fact is,mostcases never go to trial.Settlement is not an admission offault,but acceptance of the chance that a jury (or,lesscommonly,a judge) will decide against you.Your malprac-tlement.Some give one the right to insist on a trial butlimit the carrier’s liability to the amount for which thecase could have been settled.Read your policy carefully.Summary Judgement and Your lawyer may try to have the case dismissed at an ear-miscarriage of justice and a waste of time to take it to tri-al.Motions for this “summary judgement”are often grant-ed for the defendant (assuming the motion has merit).Butnot so fast—the plaintiff’s attorney will be at the samehearing,vigorously opposing your motion.Very occasionally,a malpractice case is so heavilyweighted against the defendant that “the thing speaks foritself”(that’s what means).If,for exam-ple,a surgeon amputated the wrong leg and chose to takethe subsequent malpractice suit all the way to trial,theplaintiff’s lawyer might skip all the witnesses and simplysay,in effect:“Everyone admits the wrong leg was ampu-tated.That’s all the information the Court needs to awardthe patient the money he deserves.”TrialsSettlement is common,but your lawyer will alwaysassume that your case will go to trial.He or she cannotafford to think otherwise,and neither should you.The case may take years to come to trial.Once it does,the lawyer’s demeanor changes dramatically.Everythingcomes down to a few days of intense effort and rapid deci-tice trials are over in a week or less).Much of what youthink is important may never be aired in court.Feel freeto suggest that certain points be brought out,but trustyour lawyer to decide how best to present the case.The losing party may appeal the trial verdict to an appro-priate higher court.Appeals courts review only matters oflaw (e.g.,the “technicalities”of the trial process).A jury’sor judge’s decision of “fact”(such as who did what and towhom) cannot be appealed.There is no jury in an appel-late hearing,and witnesses are very rarely called.The Final WordI hope we never meet under the above circumstances,butstatistics suggest that it could happen.Have a goodlawyer and let him or her run the show. practice defendants who want their “day