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Medical Malpractice Lawsuits: What to Do if You Receive Notice That You Are Named and Being Sued

Updated: Jul 2

Facing a medical malpractice lawsuit can be one of the most stressful experiences a physician can face. Whether you are currently facing a lawsuit or ensuring you’re prepared if one ever comes your way, understanding the legal and professional nuances involved when being sued as a physician can help you navigate the process and minimize potential repercussions. As part of our series on medical malpractice lawsuits, below we cover what you should do if you receive notice that a patient is suing you and what to avoid throughout the legal process to protect yourself and your case.


Disclaimer: Our content is for generalized educational purposes. Please do your own due diligence before making decisions based on this page. Nothing on this page constitutes formal or personalized legal or financial advice. Laws vary based on location and while this information is accurate to the best of our knowledge, it may not be up to date or apply in your location or personal situation. We are not formal financial, legal, or tax professionals, and you should consult these as appropriate. To learn more, visit our disclaimers and disclosures.


What physicians should do, and should avoid doing, when named in a medical malpractice lawsuit



Keeping It in Perspective: The Facts on Physicians and Malpractice Lawsuits


Lawsuits are a part of physician life


Being sued by a patient can feel like an incredibly personal attack on you and your medical expertise, yet the sad reality is that being named in a malpractice lawsuit is relatively common for doctors. According to the AMA, about 2% of all physicians are sued in any given year, and almost 1 in 3 physicians will face a malpractice suit at some point during their career.



Just because you get sued doesn’t mean that you did something wrong


Note is that just because you are being sued doesn’t mean that you did something wrong or made a medical error. Even though most of us beat ourselves up asking if we could have done something differently, the truth is that bad outcomes happen and many times, the circumstances are beyond our control. In fact, the vast majority of cases are found not to have sufficient grounds to even proceed to trial. Frivolous lawsuits occur all the time.



The burden of proof is on the plaintiff to demonstrate that you committed medical malpractice or practiced outside of the standard of care, as well as that there were damages


It helps to remember that the burden of proof is on the person bringing the claim against you.  The plaintiff attorney’s job is not to prove that there was a bad outcome, but actually to prove that the way you performed your duties was outside of the standard of care, and that it was directly a result of your practicing below the standard of care that your patient had an injury. They also have to prove that this injury resulted in damages that the patient needs to be compensated for financially. 



Statistics are in your favor for winning the lawsuit


Additionally, lawsuits that do go to trial statistically are usually found in favor of the physician being sued. 



Understand that this is why you have malpractice insurance


Obviously, certain specialties are more likely to face lawsuits than others. Specialties that involve surgery are the most likely, with OBGYNs facing the highest risk. This is why malpractice insurance for OBGYNs is so high. 


However, note that even though these physicians have a high rate of malpractice, we don’t see lots of homeless doctors on the streets that lost everything in a lawsuit. If you have good malpractice insurance, you’re statistically very unlikely to be sued beyond policy limits. 



Only you can determine how risk averse that you want to be, but be careful about falling prey to aggressive and expensive asset protection plans and shielding all of your assets out of this fear. We offer more insight about asset protection for doctors here. Also note that several states have a malpractice cap which limits how much an award can be, though it is certainly within the realm of possibility that the patient’s attorney can ask for more on various grounds.


You also are not likely to go to jail. Remember that most suits are civil suits, not criminal suits, and criminal cases are only pursued if you’ve done something against the law. These suits will come not from a private attorney, but rather a government authority such as a prosecutor or attorney general. If you are in this situation, you will need a lawyer very quickly.


All of that said, the likelihood of it getting dismissed likely brings little to no comfort in the moment. Since most of us spring into action mode, it’s helpful to know what you should, and shouldn’t do, when facing a malpractice lawsuit.



What Happens when You are Named and Being Sued in a Medical Malpractice Lawsuit


Facts can be your friends when facing a highly emotional situation. The more you understand about what to expect, the more you can prepare yourself throughout the steps in the lawsuit.


We’ve separately cover the stages in a medical malpractice lawsuit and recommend reading the full article, but the basic overview is:


  • The patient may file a notice of intent

  • Patient files a lawsuit (complaint)

  • The courts issue a summons

  • You need to alert your employer or malpractice insurance carrier

  • You will be assigned legal representation

  • You and your lawyer will decide how to respond (admit, deny, countersue, or file motion to dismiss)

  • The lawsuit enters the discovery phase

  • Motions or pre-trial hearings may occur

  • Settlement negotiations may occur

  • Case proceeds to trial

  • Verdict and appeals

  • Payout, if applicable



What to Do (and What Not To Do) if a Patient Files a Medical Malpractice Suit Against You


There are a few steps every physician should take when they find out they’re being sued by a patient or former patient. At the initiation of a lawsuit, you or someone else in your practice will typically be served papers (a summons) notifying you that a lawsuit (also called a complaint) has been filed. Once you receive notice of a suit:


  • DON’T panic, but don’t ignore it. Remember that the majority of cases don’t actually go to trial, so we don’t want you to panic, but it’s important not to simply ignore the suit and hope it resolves itself. This is not how lawsuits are dropped. Once served with papers, you have a prescribed length of time to respond. If you don’t respond, the plaintiff suing you can take a default judgment against you. If this happens, liability will be found against you and you’ll be stuck trying to negotiate damages that the patient is seeking.


  • DO notify your malpractice insurance carrier. If you’re employed by a group or institution, you likely have an obligation to notify your employer, who can help with or may take charge of notifying the malpractice insurance carrier to file a claim on your behalf. If you’re in private practice or self-employed, call your malpractice insurance carrier and notify them of the situation. Provide them with all relevant documents to the case, including: the complaint, the summons, and any correspondence related to the case.


  • DO discuss the lawsuit honestly with your attorney. Your malpractice insurance company will assign an attorney to your case. While their job is to protect you, you may wish to seek private counsel to add additional support throughout the process, especially if you think the malpractice company has incentive to settle and this is not your desire. You should be open and honest in conversations with your attorney. Remember, malpractice attorneys specialize in these specific types of cases. Rely on their education and advice, but don’t be afraid to ask questions to ensure you understand what’s going on as the suit progresses.


  • Do NOT discuss the details of the case with anyone. While it’s very tempting to tell your peers and support system about the complaint filed against you, any conversations you have about the case could be used as evidence against you by the opposing side of the lawsuit. If you feel you need to talk to someone for support outside of your attorney, talk to them first for guidance about finding a therapist/psychiatrist, or what information you can disclose to your spouse/close friend.


  • Do NOT contact the patient, their family, or their attorney. It can be hard having no contact when you feel like you can explain what happened, but anything you say whether you believe it to be on or off the record can be used against you by the patient’s attorney.


  • DO review the patient’s medical records and have them ready. As part of the case, both your attorney and the patient’s attorney will review the patient’s medical records. This is typically one of the first things they will ask for, so have them ready. Reviewing the patient’s medical records will also help you prepare for any deposition or testimony you may have to give. While your attorney will likely help you prepare, a thorough review of the records can make sure you’re up to speed on the details of the patient’s history.


  • Do NOT alter the records in any way. Even if you notice a glaring error in the patient’s medical records, you cannot make any changes to it. Any alteration, regardless of the reason why, can be used by the patient’s attorney to destroy your credibility, infer you were attempting a cover up, or to prove you were trying to tamper with or destroy evidence. 



Conclusion


While malpractice suits are unfortunately common for doctors, just because one may be statistically likely throughout your career doesn’t make it any less stressful. It’s completely normal to feel upset or overwhelmed, but try not to lose sight of the facts. Malpractice suits unfortunately come with the profession, and are not personal. Do not discuss the case with anyone, and stay in close contact with your malpractice insurance carrier and your attorney.


No one is perfect, and getting sued doesn’t mean you’ve done anything wrong. Stay confident in your years of experience and keep caring for your patients as you work to settle this case.



Related Medical Malpractice Resources for Physicians


If you’re facing a lawsuit or potential lawsuit, we hope the additional resources below can help. If you have questions on topics we haven’t covered yet, reach out to the hive mind in our online physician community. 


Explore our medical malpractice lawsuit series:


Additional related resources:

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