When medical providers are threatened with lawsuits, there are important steps they can take to protect their best interests. The below is intended to serve as a summary of best practices for physicians who have been threatened with a medical malpractice lawsuit.
It is not unusual for physicians to have liability claims filed against them. In fact, according to the American Medical Association’s “Policy Research Perspectives – Medical Liability Claim Frequency Among U.S. Physicians” (2017), more than one-third of all physicians have been sued at some point in their careers. Additionally, the COVID-19 pandemic has affected the way health-care providers practice medicine. The prevalence of telehealth services, which increased significantly during the pandemic, implicates new concerns relating to privacy, security, and confidentiality. Further, communicating with a patient through videoconference can lead to challenges in diagnosing a patient’s condition due to the inability to physically examine the patient. Lindsay Lowe, “Uptick in Telehealth Reveals Medical Malpractice Concerns,” Bloomberg Law (Sept. 29, 2020). According to one recent analysis, of all telemedicine-related claims pursued over a four-year pre-pandemic period, two-thirds of those claims were related to diagnosis issues. Id.
Asserting a claim for medical malpractice, requires a plaintiff to prove the relevant standard of care governing the defendant-doctor, a deviation from that standard, and an injury proximately caused by the deviation resulting in permanent damages. Komlodi v. Picciano, 217 N.J. 387, 409 (2014). The standard of care must be established by specialists with knowledge of the field of medicine in which the defendant-physician practices. Id. New Jersey’s statute of limitations for medical malpractice claims is two years pursuant to N.J.S.A. 2A:14-2, but is subject to an equitable tolling discovery rule. Ginsberg ex rel. Ginsberg v. Quest Diagnostics, 441 N.J. Super. 198, 225 (App. Div. 2015), aff’d sub nom. Ginsberg v. Quest Diagnostics, 227 N.J. 7 (2016).
Retain Counsel and Notify Your Insurance Carrier of the Claim
When a patient threatens a lawsuit, the provider should retain legal counsel. The provider should be represented by counsel experienced with medical malpractice claims. Along with retaining counsel, the provider should immediately report the incident to his or her medical malpractice insurance carrier. The insurance carrier often assigns counsel to assist early in the process, as may be necessary. As some insurance policies require the insured physician to report a loss at the time of the occurrence that could give rise to a claim, any credible threat should be immediately reported. Immediate reporting will protect the provider’s interests in the event that a lawsuit is filed later in time. Importantly, immediately reporting a claim should also prevent an insurance carrier from reserving their right to deny coverage for the claim due to late notice.
Maintain Professionalism and Avoid Defensive Behavior
In responding to the threat of a lawsuit from a patient, the provider should avoid defensive behavior and should not engage in any confrontation or altercation with the patient. The provider’s staff should maintain professionalism and cooperation in all interactions with the patient. The provider may wish to consider whether the patient is expressing frustration due to lack of information or understanding with respect to his or her care. Often, patients will threaten to sue when they feel that they have not been heard or understood, are unaware of what is happening with their care, or feel their complaints have not been addressed. In some instances, listening to the patient and addressing their concerns may be sufficient to decrease the likelihood that the patient will pursue legal action.
It is sometimes the case, however, that by the time a patient has threatened to sue all rational conversation has ceased. Here, any explanation by the provider may be misunderstood and reasonable discussion may not be possible. Where a patient is behaving angrily or aggressively, the provider should seek to end the interaction with a simple statement such as “I cannot respond to that.” Although providers are often empathetic toward their patients, avoid an apology which could be misinterpreted by the patient as an admission of wrongdoing.
Cooperate With the Patient in Transferring Their Care to Another Provider
The provider should cooperate fully with transferring the care of the patient to another health-care provider in compliance with New Jersey Board of Medical Examiners’ Regulation, NJ Admin Code 13:35-6.5, which governs the confidentiality and transfer of patient records. Regulation 13:35-6.5 requires that, upon request from the patient or the patient’s authorized representative for health-care and/or billing records, the records must be provided to the patient within 30 days from the receipt of the request. Upon request, the patient shall be provided with their record including all pertinent objective data such as test results and X-ray results, as well as subjective information. Unless otherwise required by law, a provider may elect to provide a summary of the record in lieu of providing a photocopy of the actual record, as long as the summary adequately reflects the patient’s history and treatment. N.J.A.C. 13:35-6.5.
A provider must ensure that the confidentiality of patient records is maintained when releasing records directly to another health-care provider or entity. When the patient requests his or her records be released directly to another provider or entity, N.J. BME Regulation 13:35-6.5 requires the provider to secure and maintain a current written authorization for the release of the records signed by the patient or the patient’s representative. The provider must also ensure the scope of the release is consistent with the request. Lastly, the provider must forward the records to the attention of the specific individual identified or otherwise mark the material “Confidential.”
Preserve the Patient’s Medical Records as Potential Evidence
The patient’s medical records must be preserved as potential evidence. Medical records often assist with the defense of a malpractice action by demonstrating that a poor clinical result occurred due to patient variation or patient non-compliance, and not as the result of malpractice. “Liability for Failure to Retain Medical Records,” 1 Health L. Prac. Guide §4:8 (2022). While it goes without saying, the patient’s medical records must not be altered in any way. Recall that N.J. BME Reg. 13:35-6.5 provides that corrections or additions to an existing record can be made only where the change is clearly identified as a correction or addition and is dated and initialed by the provider. Nothing may ever be deleted from patient records.
Also consider that improper destruction or alteration of medical records may constitute spoliation of evidence, the consequences of which are extremely detrimental to the offending health-care provider. Indeed, discovery sanctions for failure to preserve evidence may be imposed by a court against a party who commits spoliation. Further, a provider who commits spoliation may be liable under New Jersey law for the tort of fraudulent concealment, which serves as a remedy for spoliation of evidence. Rosenblit v. Zimmerman, 166 N.J. 391, 407 (2001). At least one court in another jurisdiction has held that a jury may infer that destroyed or altered evidence was adverse to the party committing the spoliation. See Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822 (2004) (as a sanction for hospital’s spoliation of evidence, instructed jurors they could infer that if the anesthesia equipment used in patient’s surgery had been preserved and tested, it would have been found to be operating improperly).
In summary, when threatened with a lawsuit, a provider should protect his or her interests by retaining legal counsel and immediately notify the medical malpractice insurance carrier of the potential claim. The provider should always maintain professionalism and cooperate with the patient in transferring medical records to a new provider. In transferring medical records to another provider or entity, the provider must ensure confidentiality and compliance with N.J. BME Reg. 13:35-6.5. Lastly, the provider must preserve the patient’s records as potential evidence and to avoid spoliation issues.
Keith Roberts is a member at Brach Eichler and co-chair of its litigation department. As a member of the firm’s health-care team, he is often called upon to represent hospital systems, medical practices, and a wide array of health-care professionals in complex litigation matters. He is a certified civil trial attorney by the New Jersey Supreme Court.