Getting Sued for Malpractice: Practical Advice From Physicians Who've Been There
Most physicians will be named in a malpractice lawsuit at some point in their careers, yet very few of us get any training on what to expect. Recently, a member of one of our online physician communities posted anonymously about their experience. They had just come through a jury trial that ended in their favor, and they wanted to share what they learned so the next physician wouldn't have to figure it out alone.
The post struck a nerve. Colleagues added their own experiences and advice, many of which directly address the questions many quietly wonder about. Below, we've compiled the most practical advice from that discussion, organized by stage of the process. Where physicians disagreed, or where the answer depends on your state, we tried to note that too.
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Advice for those who have been sued or are worried about a malpractice lawsuit
While none of this replaces official legal advice, we hope it’s practical advice that’s helpful for those of you who are currently in the middle of a lawsuit, or worried about getting sued. Always check any financial or legal suggestions with your own hired expertise, who can help individualize the advice to your particular situation.
What should you do after an adverse outcome?
The fact is that most malpractice lawsuits don't start with a plaintiff looking for a payout, but rather with a family that has unanswered questions. The physician who started our discussion described the family in their case as nice people who weren't in it for the money. They requested the records, saw something they thought was wrong, and went to a lawyer for answers.
Communicate with the whole family, not just one person
After updating a spouse about an adverse outcome, ask whether adult children or other family members who aren't at the hospital would like to be updated too, or offer a family meeting later. Several physicians in our communities pointed out that the person at the bedside isn't always the one who pushes for a lawsuit. One physician shared that they were sued as an intern by a family in which the adult children and a second spouse were at odds. Information passed along secondhand, or pieced together later from the chart, can easily turn into suspicion.
Get risk management involved early
If an event happens at the hospital, loop in your risk management team right away. They can often involve the patient relations team, who can act as a liaison if the family has more questions later, and ensure that the patient and their family feel heard and advocated for.
Be thoughtful about how you apologize
The original poster felt strongly that expressing sorrow is simply human, and was grateful for the chance to tell the family they were sorry for their loss, both before the trial and after the verdict. Another physician who has written about malpractice cautioned that protections vary. Many states have "I'm sorry" laws that keep expressions of sympathy from being used as evidence, but the scope differs. Some protect sympathy but not admissions of fault. Know your state's rules, and talk with risk management or counsel about your wording.
What should you do when you're served with a lawsuit?
The following is advice from our communities. We also have some dedicated resources on this, which you can review for more detail:
Notify your carrier and get your attorney involved
Your malpractice insurer will typically assign defense counsel, and your policy may have strict notice deadlines, so don't sit on it.
Write down what you remember, the right way
The original poster advised jotting down as many details of the case as possible, because things get fuzzy by the time of your deposition, and even more so by trial, which can be years later. A colleague added an important caveat: notes written before you've met with your attorney may be discoverable by the plaintiff. Ask your attorney how to document your recollections so they're protected.
Don't go into the patient's chart
One physician whose family member works in malpractice claims put it simply: don't open the patient's record to refresh your memory. Electronic records keep an audit trail of every access, and looking after a suit is filed can raise questions. Your attorney will get you the records. And never alter or add to documentation after the fact.
Be an active partner to your attorney
Defense attorneys are great at the legal details, but they don't know medicine the way we do. Help them help you. Read the expert witness depositions closely, especially from the opposing side, and flag medical errors, discrepancies, and alternative explanations.
Pay attention to who's representing you
Experiences with insurer-appointed attorneys varied in our communities. The original poster found theirs excellent, noting that defense firms rely on repeat work from carriers and have every incentive to do a good job. Another physician had a very different experience. Their attorney was chosen by a co-defendant, and they later learned of a prior relationship with opposing counsel. A few things we'd keep in mind:
Ask whether your interests could conflict with any co-defendant who shares your attorney. If so, ask your carrier about separate counsel.
Raise any concerns about your representation with your carrier early, not after the case is well underway.
Consider whether to hire a personal attorney to advise you alongside your carrier-appointed counsel, especially if the claim could exceed your policy limits.
Related PSG Resource:
How should you prepare for your deposition?
Your deposition becomes the record you'll be held to at trial, so physicians in our communities treated it as one of the most important days of the whole case.
Know the case inside and out
In general, your testimony at trial can't differ from your deposition. Opposing counsel will look for inconsistencies and may pull quotes out of context, so reread your transcript until you know it thoroughly.
Say what you need to say
One physician warned that you can't easily add to your story later, so make sure the important points make it into the record.
Only state what you can recall with reasonable certainty
A member asked whether it's safer to say "I don't recall" than risk being wrong. The original poster's answer: if you can recall something to a reasonable degree of certainty, say so. If you'd like to elaborate further at trial, tell your attorney ahead of time so they can ask the right questions. Attorneys generally don't like bringing up new material at trial, since it can give the other side ammunition.
Practice with your attorney
Prep sessions help you get comfortable with the format and with the kinds of questions plaintiffs' attorneys tend to ask.
What should you expect at trial?
The jury needs to trust you
The facts matter, but jurors also need to see that you're a genuine, honest person. Two pieces of advice came up again and again: talk to the jury, not the attorney, when you testify, and make eye contact with each of them. As one physician put it, you are your own best expert. If the jury learns from you, likes you, and trusts you, they're less likely to find you liable.
Expert witnesses matter, but maybe not as much as you’d think
The original poster felt the jury in his trial didn't put much weight on expert witnesses. Others noted that jurors know experts are paid, so they factor in some bias, but a strong, credible expert can still help or hurt your case. This almost certainly will depend on the rapport they build with the expert witness and how convincing they are on the stand.
Consider being there every day, if your attorney agrees
The original poster attended all two weeks of their jury trial. They learned how the jury reacted to different issues and what jurors found important enough to write down. Others pointed out that practice varies by jurisdiction, so follow your attorney's lead. If they want you there, clear your schedule.
Listen for medical discrepancies, but be discreet
During direct and cross-examination of witnesses, listen for medical inaccuracies and alternative explanations your attorney might miss. That said, one physician experienced in malpractice defense cautioned that jurors notice when you pass notes, which can draw attention to things you'd rather they overlook. Agree with your attorney ahead of time on how and when to share your observations, such as during breaks.
Remember what a lawsuit is and isn't about
Several physicians emphasized that being sued doesn't mean you're a bad doctor. Plaintiffs' attorneys often front significant costs, so they tend to take cases they believe they can win or settle. That depends on factors like damages and how sympathetic a jury will be, not just whether the standard of care was met. Others acknowledged that some suits are warranted, and that weak cases still get filed and can take months to be dismissed.
What is a high-low agreement, and is it reported to the NPDB?
If your attorney or claims specialist isn't confident in a defense verdict in your favor, they may recommend a high-low agreement, often after closing arguments. Both sides agree ahead of time on a minimum and maximum payout, regardless of what the jury decides.
The original poster shared an example. With a 1million/100,000 high-low agreement:
If you lose, your exposure is capped at $1 million, even if the jury awards more.
If you win, your insurer still pays the plaintiff $100,000.
Does the "low" payment get reported?
Physicians in the discussion disagreed on this one, so it's worth checking with your attorney on this one. In general, any payment an insurer makes on your behalf to settle a malpractice claim is reportable to the National Practitioner Data Bank (NPDB), even a small nuisance settlement. But the NPDB has specifically addressed high-low agreements. A low-end payment made after the jury finds you not liable may not need to be reported (AAFP, NPDB). It is reportable if you're found liable, if the case settles before a verdict, or if the parties abandon the high-low agreement for a different settlement.
What else to keep in mind
The jury has to actually find you not liable. Settling before a verdict is reportable, even if a high-low agreement was in place.
State medical boards may have their own rules. Some states have required carriers to report low-end payments to the medical board even after a defense verdict. Ask your attorney about your state.
It can still affect your premiums. The original poster noted the payment may show up as an indemnity loss on your insurance history.
You give up a full win. The plaintiff gets paid either way, and these agreements often waive appeals. Weigh the tradeoffs with your attorney, and know whether your policy requires your consent to settle.
How can physicians protect their personal assets?
This part of the discussion generated the most questions, and also the most conflicting answers. The most important point is timing. Asset protection has to be in place before a claim arises. Moving assets after you've been sued, or after an incident you expect to lead to a claim, can be undone by a court as a fraudulent transfer.
The good news is that several physicians pointed out that verdicts above policy limits are rare (see How Likely a Physician Is to Be Sued Past Policy Limits, and What to Do to Protect Yourself). When they do happen, carriers often negotiate or appeal to bring the payout within limits. Still, the stress of wondering whether you could lose everything is real, so here's what to know about the most commonly discussed tools.
Carry adequate malpractice limits
This is your first line of defense. Know your per-claim and aggregate limits, and whether they fit your specialty and your state's verdict climate.
Related PSG Resources:
Tenancy by the entirety
In states that recognize it, married couples can own property as a single unit, so a creditor of only one spouse generally can't reach it. It's recognized in about 25 states plus DC, but not in states such as California, Texas, Georgia, or Alabama, and some states limit it to real estate (check for updated information before making decisions based on this article). Make sure your deed is titled correctly.
Revocable vs. irrevocable trusts
This is where we saw the most confusion. A revocable living trust offers little protection from lawsuits. It's an estate planning tool that helps you avoid probate, and because you still control the assets, creditors can reach them.
An irrevocable trust or domestic asset protection trust (DAPT) can protect assets, because they're no longer legally yours. The tradeoff is that you give up control, and it's generally permanent. DAPTs are only allowed in certain states, and they must be set up well before any claim. One estate attorney in the discussion noted that most physicians don't actually need one.
Related PSG Resources:
Retirement accounts
Employer plans like 401(k)s have strong federal creditor protection. Protection for IRAs outside of bankruptcy depends on state law.
Homestead exemptions
These protect some or all of the equity in your primary home, but they vary widely. Some states, like Texas and Florida, offer very strong protection, while others protect only a small amount.
Umbrella insurance
Umbrella policies are useful for auto and home liability. However, personal umbrella policies usually exclude professional liability, so don't count on one to cover a malpractice verdict.
Related PSG Resources:
What if you're single?
Single physicians asked what's available if tenancy by the entirety isn't an option. Anyone can set up an irrevocable trust, and retirement account and homestead protections apply regardless of marital status. One estate attorney estimated $2,000 to $5,000 for a basic estate plan, depending on location. Many attorneys offer a free or low-cost initial consultation.
Related PSG Resources:
What about tort reform?
Some physicians suggested practicing in a state with damage caps. Others noted that many tort reform states only cap non-economic damages, so large verdicts covering lifetime care and lost wages still happen. And uprooting your family to avoid a rare outcome isn't a tradeoff everyone would make.
Because the rules vary so much by state, talk with an estate planning or asset protection attorney licensed in your state before making changes, and verify anything you read online (including here) with a professional.
Related PSG Resources:
How do you take care of yourself during a lawsuit?
Even a win takes a toll. The original poster described their two-week trial as stressful, but also a learning experience. A colleague who has written extensively about malpractice reminded them that you can still be traumatized by the process even when it goes your way, and litigation can stretch on for years.
If you're going through it, lean on people you trust. Many carriers, hospitals, and medical societies offer litigation stress support programs, so ask your attorney or carrier what's available. And if it starts affecting your sleep, your practice, or your relationships, consider talking with a therapist or a physician wellness program.
Conclusion
Malpractice lawsuits are a part of physician life that most of us will face at some point, yet so many of us face them alone. The lessons from this discussion come down to a few things: communicate early and openly with families, partner closely with your defense team, know your deposition inside and out, let the jury see who you are, and set up your financial protections long before you think you'll need them.
Thank you to the anonymous member who shared their story, and to the many colleagues who added theirs. If you have lessons from your own experience, consider sharing them with the hive mind of 230,000+ physicians in our online communities for doctors, so the next physician doesn't have to learn them the hard way.
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