A commitment to physician education and peer support
So many of us feel worried and isolated when facing a malpractice claim or a board investigation. We begin to question our abilities. We carry shame, often keeping these experiences to ourselves—even years after a case is resolved, whether we are dropped from it or ultimately prevail.
We often dismiss this as “the cost of doing business.” But is it really?
It’s time to start talking about these experiences, sharing our stories and seeking support.
Join our private physician community for practical advice, peer support, and resources to help you navigate litigation, manage stress, and move forward with confidence. Whether you are in the midst of a case or the process has ended, connect with physicians who understand the experience and find support to heal, recover and rebuild in the aftermath.
Legal Processes every Physician should understand
Medical Malpractice Definitions
Standard of Care
In medical malpractice, the standard of care is the skill and care that a reasonably competent and skilled healthcare professional with a similar
background and in the same or similar circumstances would have provided.
Negligence
4 elements must be proven:
1) Establish Duty: The provider owed the patient a duty of care
2) Define Standard of Care: Expert witnesses testify to what a reasonably competent
professional in that field would have done in the same situation
3) Prove Breach: The plaintiff must show the provider’s actions (or inactions) fell
below the standard
4) Causation and Damages: The breach of care must have directly caused the patient’s
harm or injury
The legal process step by step
Discovery Period
Pretrial phase where opposing sides obtain evidence from one another
Depositions
Witnesses answers questions out-of-court but under oath, with a court reporter transcribing the testimony
Motions
Requests for the judge to make a legal ruling. Led by lawyers.
Court
Voir Dire- Jury Selection
Opening arguments
Plaintiff Begins the Case
Defense Case
Your Examination and cross examination
Closing Arguments
Depositions Basics
Tips
“You can’t win a deposition but you can lose one”
The plaintiff’s attorney goal is to gather information that helps them win their case and determine what kind of witness you would be in front of a jury
Be professional, polite and never angry
Think before you answer, be succinct, do not guess
Do not volunteer information
If you do not understand the question, ask for clarification
Your answer may not be limited to the alternatives given
Be on guard for leading questions
Listen to your attorney’s objections
Courtroom
Etiquette
Dress and act professionally
Do not argue with the plaintiff’s lawyer
Review anything presented to you are at the stand
You can still be part of the negotiation (eg high low agreements)
Risk reduction strategies
Patient Physician Relationship
Establish rapport with your patients
Be empathetic and honest if something goes wrong
Listen and address concerns
As a resident: if you have an angry patient, involve your attending
If a patient that you are particularly concerned about, wants to leave AMA try to involve the family with patient’s consent.
Documentation
Always try to read and address other entries from the team
Address abnormal vitals
Document in detail any discussions with consultants
Document an attending part along with an attestation (even if a few lines)
Risk Management
Discuss negative outcomes
Discuss angry patients who threaten you with legal action
Don’t document risk management discussions in the chart
Insurance/Legal Representation basics
Consent to settle clause
A consent-to-settle clause requires the insurer to obtain your written permission before finalizing a settlement with the plaintiff.
Hammer clause
A hammer clause is an insurance policy provision that pressures the insured person to accept a settlement recommended by the insurer. If the physician refuses and the final outcome is worse, the insurer may pay only what it would have paid under the proposed settlement, leaving the physician responsible for some or all of the excess amount.
Resources
Books: How to survive medical malpractice lawsuit by Ilene Brenner
Podcasts: Doctors and Litigation the L Word by Gita Pensa
Newsletters: Medical Malpractice Insights, The Expert Witness
Websites: https://www.acepnow.com/aid-legal-stress/
Physician support Line: 1-888-409-0141
Personal Essays
Social Media:
I am an emergency physician with basic scientist training. I explore how the threat or reality of litigation affects the practice and personal life of doctors.
Aliki Kosteli, MD, PhD