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Dealing with the Threat of a Medical Liability Claim
By: Teresa McMillan, MAG Mutual Risk Management and Patient Safety Consultant

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Physicians are not expected to be comfortable in the courtroom or in dealing with threats of legal action. MAG Mutual representatives will assist you at such times. Reporting malpractice lawsuits, threats of legal action, claims and potential claims as soon as possible is a policy obligation. Timely reporting can also assure efficient action by MAG Mutual on your behalf.

Post Incident/Damage Control
The time immediately surrounding an injury or unexpected outcome is filled with efforts to meet the needs of the patient and/or family members. Action taken within the first few days or even hours after an injury has occurred may reduce the severity of a loss and possibly prevent a malpractice lawsuit. The following recommendations may be utilized to assist the provider with post incident actions/damage control:

• Contact MAG Mutual at 1-877-402-8743. Basic information will be gathered that will allow a claims representative to provide assistance.
• Communication with the patient and/or family is very important. Be open and honest without admitting guilt. Maintain contact as necessary and do not avoid their request to meet with you.
• Medical devices should be preserved exactly as they were when the incident occurred. The settings should not be altered. The equipment should be placed in a secure location and actions documented. The equipment should not be sent back to the manufacturer, but an independent professional should be obtained to check the equipment. This action will provide information as to whether the equipment contributed to the incident.
• Save all packaging of accessories with printed lot numbers used at the time of the incident.
• Never speak with a patient’s attorney, media and/or a private investigator without first contacting MAG Mutual and/or defense counsel.
• Records should only be released with the appropriate authorization or legal process.
• Contact  MAG Mutual Claims anytime that you receive court documents or correspondence from an attorney other than your own.
• Do not keep private notes about the incident or the case without guidance from MAG Mutual representative or your attorney. Such notes may not be protected against disclosure.1
• Caution: Discussions held outside of MAG Mutual or your attorney may be discoverable.

Reporting
Early reporting of incidents and/or claims will provide MAG Mutual with an opportunity for early review and evaluation. A claims representative should be contacted for the following:

• When you are served with malpractice lawsuit documents;
• Whenever you are contacted by an attorney by phone or letter to discuss a patient’s care (There are never any “off the record” discussions.);
• When any unexpected death or injury occurs;
• When a patient threatens a malpractice lawsuit;
• Whenever a subpoena is received involving another physician or hospital;
• Regarding any correspondence from an attorney to a physician or the hospital requesting records or notifying him/her of a claim with the exception of workman’s compensation and automobile claims in which the physician is involved, unless the care he/she provided is in question.

If you are unsure if an incident should be reported, contact MAG Mutual for guidance. Prompt reporting will not have an adverse effect on  your insurability, premiums or Loss Excellence Appreciation Discount.

Source:
1. MAG Mutual Insurance Company, Risk Management Handbook by, 2008