The communication between defense counsel is a critical component of a successful defense of a medical malpractice claim. The defendant-physician can play a pivotal role in directing defense counsel to witnesses, medical literature, theories, and experts. The challenge for the defendant-physician is how to establish the expectations for communication with defense counsel during the progress of a claim.
Begin at the beginning
One of the first understandings the defendant-physician and defense counsel should reach pertains to communication. The defendant-physician should understand that litigation does not progress steadily or in a particularly linear or predictable fashion. There will be a flurry of activity at the commencement of the case as defense counsel files a response to the suit and conducts preliminary and standard discovery (collection of records, interviews with the defendants, and written discovery requests in the form of interrogatories and document requests). A lull will follow before the scheduling of depositions of the witnesses and experts. As mediation or trial approaches, the activity level will increase again. The pace of litigation varies from venue to venue, and state to state.
That being the case, the defendant-physician should make it clear to defense counsel how much communication is expected to instill confidence in defense counsel, and by what means. The form of communication can be via face-to-face meetings, telephone calls, email, or formal written correspondence. Defense counsel is equipped to use the means of communication that best suits the client. Don’t be shy about telling your defense counsel what works best for you.
Some physicians put almost complete trust in defense counsel and deflect ongoing information in whatever form. That can be a mistake, and not because defense counsel are untrustworthy. My professional experience tells me that one of my best resources for critical information about the case is the defendant-physician. If the physician defers all discussions of strategy to defense counsel, the defense may suffer from a lawyer who doesn’t fully understand the records, the pertinent anatomy, the relevant medical literature, or the basic explanations for the defendant-physician’s decisions and judgment about diagnosis and treatment. This is a vital dialogue, and needs to happen even if the physician is devastated by having been named in the suit!
My advice, therefore, is to begin the process of communicating with your defense counsel from the very beginning of the relationship. Offer your advice. Copy literature for your defense counsel. Ask probing questions about the progress of the suit, the defense theories, retention of experts, and the end-game strategy. Don’t bury your head in the sand! Your defense team will benefit from your involvement, and the chances for a successful outcome will increase!
