Defending a Medical Malpractice Claim – Here’s What to Know Medical record review is crucial for a medical malpractice case, as clear evidence on better treatment improves the chances for physicians to prove their innocence.
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A physician will often be informed about a malpractice suit with a summons and a copy of the lawsuit. But in some states, they may find out before the summons, when they receive a notice of intent (NOI) to sue. If properly maintained with appropriate documentation, medical records can be of great value in defending an allegation of poor quality care. For effective defense against a medical malpractice claim, a physician can hire a qualified attorney. The first thing that the lawyer does is to investigate and review the relevant medical records. Medical review solutions help such lawyers retrieve and organize medical records that strongly support the claim. According to a study by the American Medical Association, 42% of doctors had faced a malpractice claim at some point in their careers and 65% of medical malpractice claims were dropped, dismissed, or withdrawn. At court, the judgment will be done on the basis of whether you have treated the patient in a way that a reasonably competent medical professional in your area would have. And for this purpose, you may have to gather patient medical records, your notes on the patient or treatment, any medical treatises or articles you relied on when diagnosing or treating the patient, the names of other people who treated the patient and a summary of your conversations with other personnel who treated the patient. The plaintiff’s attorney may also contact you to request the plaintiff-patient’s medical records for the evidence to file a case. Before committing to litigation, experienced attorneys will review the patient's medical records and choose to send them to an expert to determine whether you or other health professionals deviated from the expected standard of care. It is highly recommended that physicians do not alter their medical records in any way. If done intentionally, altering and falsifying medical records is a crime in most states. The plaintiff's medical malpractice lawyers will also cross-check the records for any alterations made. Types of Defenses in a Medical Malpractice Case All Law has discussed three of the most common defense strategies in medical malpractice cases:
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Rejection of expert testimony The physician might argue that the plaintiff’s medical expert is not qualified to express an expert opinion on a particular topic, or the opinion is not reliable, as it is not based on accepted scientific explanations. If the judge is convinced that the plaintiff’s expert is insufficiently qualified or if their testimony is unreliable, the judge will prevent the expert from testifying, which will also prevent the plaintiff from proving the case. Reduction or elimination of damages In certain cases, the focus will be completely on whether the patient was harmed than whether a mistake was made. If there is no significant harm that a patient can show, the doctor might lose the case while only paying minimal damages. Absence of causation A defense lawyer might also argue that any harm that the plaintiff may have experienced was not actually caused by any mistake made by his/her client. If the doctor had properly diagnosed the patient, it may be possible to eliminate any causal link between the doctor's error and any actual harm resulting from it. Key steps involved while defending a malpractice case •
Choose the right lawyer
Often the malpractice insurance carrier will assign you a lawyer. Doctors should explain to their attorney what they know best about the case; the medicine involved in the case and other details, which would help the attorney to better understand the case. A medical malpractice defense attorney will collect all the related medical records to defend the plaintiff’s claim. •
Medical record review
The medical malpractice lawsuit will focus on the doctor’s actions: whether he or she treated the patient in a way that a reasonably competent medical professional in that area would have treated the patient. The defense attorney will collect all medical records.
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Doctors should support attorneys in gathering patient medical records, their notes on the patient or treatment, any medical treatises or articles they relied on when diagnosing or treating the patient, the names of other people who treated the patient and a summary of his/her conversations with other personnel who treated the patient. •
Discovery process
The discovery process is the procedure in which the plaintiff and the defendant party send interrogatories (a fancy word for questions) and document requests to each other, and take depositions of all of the relevant witnesses in the case. Physicians should also participate in written discovery, which occurs when the plaintiff's attorney sends a list of questions to your attorney for you to answer. An experienced attorney can help you answer them appropriately. The discovery process and the period of time leading up to the deposition can take weeks or months. •
Mediation and Negotiation
By the end of the discovery period, possibilities are more that the lawyers will generally start talking about settlement. Sometimes the lawyers can settle a case just by talking among themselves, but, in other cases, they will go for mediation. Mediation is a process in which both clients and both lawyers go in front of a mediator to try to settle the case. •
Preparing for deposition
The most crucial aspect in the defense of a medical malpractice lawsuit is the deposition of the physician-defendant. A deposition is a sworn testimony of a party or witness taken before a court reporter and its main purpose is to obtain all the facts of the case from the witness. During direct examination, doctors must be prepared to answer all questions truthfully. Before deposition, a preparatory meeting will be arranged by the attorney to prepare doctors to respond well to anticipated questions. Medical experts on both sides will use this deposition testimony to determine whether you met the standard of care in the plaintiff's medical treatment. It's more likely the lawsuit will conclude in your favor if you appear calm and knowledgeable during the deposition. One key element in preparing yourself to testify will be to review the relevant medical records. In the course of a deposition, you are likely to be questioned in detail concerning the treatment rendered and all individuals involved in the patient-plaintiff's care. Reviewing medical records will help you to be fully prepared to discuss the nature and scope of the
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history, examination, diagnostic tests, treatment decisions and communications made with the patient during each encounter. Even if the lawsuit does go to trial, doctors should continue preparing the same way they prepared for the deposition. Review the medical aspects of the case and "intimately familiarize" yourself with the medical records involved. Medical chart review also helps the physician to be prepared for the trial. Disclaimer: The facts mentioned in the blog have been sourced from reliable internet resources and are not the conclusions or opinions of MOS or any of its stakeholders. For professional legal opinion, consult a lawyer.
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