Unprotected Statements: or “This Ghost Will Come Back to Haunt You”

Timothy R. Bone, President, MedMal Direct Insurance Company // February 22, 2012

Perhaps this scenario has happened to you: Dr. X is distressed over the death of one of his patients and, when contacted by an attorney on behalf of the patient’s family, the doctor readily agrees to the attorney’s request to meet and fully discuss the matter. At the meeting, the attorney says it would be helpful to record the conversation to avoid any misunderstandings. Dr. X reluctantly agrees: after all, the attorney said he is not looking to bring legal action, but is only trying to help clear up the facts and convince the family that Dr. X did everything possible to prevent this death.

One month later a lawsuit is filed and the recording of Dr. X’s candid statements will now be used against him. Dr. X has learned, too late, that the attorney was originally on a fishing expedition to set up the doctor for a lawsuit, that he does not have the doctor’s interests at heart, but is instead interested in the doctor’s wallet!

Dr. X should have said that he would be most willing to discuss the facts of the case, but only after contacting his insurance company’s claims manager or risk manager for guidance. If Dr. X had contacted his insurer first, he would have received help to avoid making careless statements that later could be taken out of context and used against him. It is human nature to feel you may have been able to do better. Because of these feelings, and the innate vulnerability of Dr. X in this situation, he needs the assistance of an individual experienced in managing these inquiries.

I recommend that you consult your claims manager or your risk manager before complying with any request by a patient’s attorney to discuss, or provide a written report concerning professional services rendered.

In the investigation of a formal claim, all too frequently we find evidence that an attorney or investigator has contacted the doctor, or worse, a member of his office staff, who then engaged in a prolonged discussion of the treatment being questioned. Any such unprotected statements will certainly come back to haunt the doctor. As we all know, preventive medicine is the best medicine, and it may be too late for a cure if you give a statement before seeking the advice of your claims manager or risk manager.