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| Sabotaging your own Med-Mal Defense: What you need to Avoid |
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by Marcos A. Vargas, MSHA, PA-C - June 13, 2011
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Most NP/PA defendants don’t set themselves up to purposely “sabotage” their own med-mal defense strategy; yet, that’s exactly what many do when they unconsciously or indirectly engage in contradictory behaviors or assume some detrimental views about the process and even their own cases.
They become their own med-mal defense strategy saboteur when committing these mistakes:
Mistake # 1: Delayed Insurance Carrier Notification:
Unfortunately, many named defendants procrastinate, forgetting that they have a window of opportunity to seek legal assistance & protection, therefore putting themselves at risk for a default judgment. This is a court order granting the plaintiff or the petitioner any and all reasonable requests made in their subpoena. In other words, you will be liable for any payments &/or actions the default judgment specifies against you. The time frame is dependent on local rules & state law.
This is another way by law that the “Rules of Procedure” give the plaintiff or petitioner a way to end the case within a reasonable amount of time to respond. Sadly this is not the time to procrastinate, but rather act promptly and decisively in procuring legal representation. As a defendant, you have a duty to notify your insurance carrier immediately after becoming aware of any potential claim(s) against you.
Mistake # 2: Improper Chart Corrections Techniques:
Placing unexplained corrected entries or “fixing” the medical chart without the proper legally accepted protocol (i.e. using The S-L-I-D-E Rule) can potentially lead to a claim of Spoliation. In the slide rule you basically strike a single line trough the wrong medical chart entry, date it, & write “error” next to it with your initials in parenthesis.
In these circumstances, anything viewed or considered a charting impropriety on the defendant’s behalf will always lead a jury to belief there was some sort of “cover-up.” It is easy to see why Spoliation is considered a cardinal sign--a very serious charge that many insurers do not defend, thus potentially becoming a career-ending charge.
Mistake # 3: Case Discussion (lack of restraint):
Under no circumstances should you ever seek advice, discuss or sign/accept any documents outside from your own Risk Manager, your own Insurance Claims Consultant or your own defense attorney. Such incidents have unknowingly “torpedoed” many defendants in the past.
Why? Because, unknowingly, you may be disclosing information that could be potentially be used against you; therefore, do your very best not to seek peer sympathy by engaging in “curbside consultations” from non-attorney parties. Defense experts view this as a self-incriminating risk exposure that you do not need at this junction. Unguarded communication can be another area of potential legal nightmarish consequences even for the best-intentioned provider when seeking professional understanding as already stated.
Mistake # 4: Professional Physical Unavailability:
Self-imposed or work-related “case distancing” would neither boost your defense nor develop a close relationship with your defense attorney. No one knows the intricacies of the case better than you do. Even if you’re not an attorney, the case is still about you, so it behooves you to be very much “available” to facilitate your very own defense.
Remember, overt or subtle case “unavailability” signals to your defense team that you don’t have a vested interest in your own legal fate. Essentially & unfortunately this unavailability reflects a lack of professional responsibility when a defendant NP/PA cannot be counted physically when strategizing a defense plan on their own behalf.
Mistake # 5: Being (emotionally) Disinterested:
Likewise, nothing can be more detrimental to a NP/PAs defense strategy and career, for that matter, than a sudden or gradual emotional disengagement from the case. In other words, being disinterested with the case or your own defense strategy, you will find yourself being part of an indifferent team, either openly or covertly, secondary to your impartial attitude. A case of displayed apathy steadily leads your defense team to feel basically unappreciated. What kind of incentive would they have if you are uncaring about your own legal fate? Think about it.
As you can see it benefits you to concentrate your efforts into being more attentive, a better listener and becoming an active participant if you are seeking to improve your defense verdict probabilities.
Mistake # 6: Being Discourteous to the Defense team:
Everyone knows that you are under duress; however, that does not excuse your impoliteness, your overbearing criticisms or sarcastic comments when you’re being helped. The situation is already tense to begin with. Why make it any more difficult than it needs to be?
This stance is a sure way to undermine the desire of others wanting to help you. Not the way to make friends in anyone’s eyes—for sure.
Conversely, exhibiting signs of civility and patience towards others not only fosters goodwill among all stake-holders, but the desire of others to see you triumph if not the desire to see a favorable settlement on your behalf. Remember your defense team is on your side…so be courteous to them. Embrace them.
Mistake # 7: Being Uncooperative to the Defense team:
Basically, this is another form in which defendants tune themselves out of the team effort by being unhelpful to their own cause. Gravely enough, this is very costly to a defense team when there’s no concurrent effort by the defendant in solidifying the respective defense strategic outlook.
A successful defense comes about when all team members are operating jointly to the same end. As the old saying goes: “a divided house can not stand.” Don’t become a hostile player. By being antagonistic, you weaken or erode your own defense credibility.
Mistake # 8: Being Publicly Arrogant in Court:
Nothing can be more self-sabotaging than an “arrogant” clinician who thinks and behaves as they know it all by disregarding or trivializing the rules of the court in front of a jury. This one is probably the most egregious trait that a provider can have. Why? Because the triers of fact would believe that the clinician’s arrogance led to the patient’s adverse outcome.
It behooves you to tame your pride or keep in check your delusions of grandeur. If you behave and think that you are God, then be prepare to endure the un-forgiveness of the jury even though you may have not been a tortfeasor.
Surprisingly enough, many juries would be willing to forego a plaintiff verdict if you come across as a caring, humble, attentive clinician who in spite of concentrating your best efforts in promptly referring the patient to a specialist or even adhering to the standard of care, the patient suffers an adverse outcome. A medical mishap is not always necessarily the result of clinical negligence. But, then again, a non-arrogant demeanor is always the best policy in court and your best defense.
Mistake # 9: Being Legally Unprotected or Inadequately Protected:
All clinicians understand the need to have Professional Liability protection. But few actually know their policy number, much less their coverage limits. In some cases under an employer-provided policy, the coverage may be underfunded or simply inadequate for their defense.
Beware: don’t be lulled into a false sense of security because you may be provided with liability protection. Particularly if your employer has several of your colleagues under one policy or your employer’s coverage is a claims-made only policy. Thus leaving you unprotected if charges are raised after your period of employment has come to an end and/or the defense costs may have to been disbursed among several of your peers. Or separate multiple allegations were raised in the same year in which all were under the same policy. So know your limits. Know your coverage exclusions too.
Going “bare” (without coverage—“fashionable” several years back) or not knowing or being misinformed about your malpractice policy could be your biggest liability risk exposure in this regard. Remember NPs and PAs may not be the big pockets, but still are just as much risk as their physician counterparts, especially nowadays where the scope of practice have broadened over the past several years for both professionals. Essentially it boils down to this: the greater the clinical responsibility, the greater liability exposure you will find itself in.
Safeguard your career: protect yourself with the right policy for you and your practice style.
Obviously successful NPs/PAs not only rely on their malpractice policies to offset med-mal allegations, but they also seek to protect their careers and livelihoods by proactively discarding negative attitudinal behaviors. Moreover, they become defensive-minded. So sidestep these detrimental self-sabotaging personal and professional behaviors and you will see your defense boosted.
 Marcos A. Vargas, MSHA, PA-C is a Boston born and Puerto Rican bred individual who has an extensive healthcare industry background, both industry-related as a Pharmacy Technician during his undergraduate years, and industry-specific as a dually N.C.C.P.A. certified Physician Assistant in Surgery and Primary care after graduating from the University of Alabama—Birmingham Physician/Surgeon’s Assistant Program. He has held clinical positions in Cardiothoracic, General Surgery, & Emergency Medicine over the past twenty years. He holds a Master’s in Science Administration from Central Michigan University and a Healthcare Risk Management graduate certificate. He has been retained and consulted regularly by both plaintiff & defense law firms over the past 14 years. During this time, he has served as both a consulting medical reviewer and a PA expert. Marcos has lectured on Clinical Risk Management (PA) issues throughout the years to various Michigan-based PA Training Programs. He has done the same for lay audiences, covering a wide range of “Wellness” topics. He has been a supporter and associate member of numerous professional clinical and non-clinical organizations. Currently he is employed as an orthopedic PA at HMC.
The viewpoint expressed in this article is the opinion of the author and is not necessarily the viewpoint of the owners or employees at Healthcare Staffing Innovations, LLC.
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