CRNAs are highly skilled and greatly valued for the amazing work that they do 24/7 to ensure patients receive the expert care that they deserve.   Regardless of your expertise, not every patient achieves the outcome that they desire, and our legal system affords them the opportunity to file a claim for damages if they feel that their care was deficient.   The bottom line is that you may find yourself as a defendant in a lawsuit regardless of the quality of care that you delivered.  When the dreaded notification of a lawsuit arrives, what is your next step?

Receiving official notification from a court that a patient has filed a claim against you may trigger a panic response and cause you to feel shocked, angry and out of control.  This is not the time for a knee jerk reaction, rather, it is time to take a deep breath, put things into perspective, and create a plan to move forward to defend yourself against the allegations.  The best thing to do when you initially receive notification of the complaint is to do nothing.  Don’t panic, don’t talk to your friends, and don’t touch the medical records.

When faced with a lawsuit, keep in mind the excellent work that you do daily and gain confidence from your overwhelming track record of success as an anesthesia provider.  The allegation against you will likely be malpractice so it is important to understand the elements necessary for the claim to be upheld.

• They must establish that there was a duty to the patient.  When you accept the case and administer anesthesia, you establish an obligation to do it safely, so the question of duty is self-evident.
• The plaintiff must show that there was a breach in the standard of care.  In medical cases the standard of care is what an ordinary, prudent professional with the same level of training and experience in a similar community would do under the same or similar circumstances.   Expert witnesses for both the plaintiff and the defendant help establish the standard of care.
• There must be a direct link between the failure to deliver the standard of care and the injury to the patient.  Even when the anesthesia care does not meet the standard of care, if the breach did not cause the injury, it is not malpractice.
• Damage must have occurred for the case to move forward.  Damage may include actual injury, pain, suffering, loss of income, disability, constant pain, or death.

Your defense team will attempt to establish that one or more of the elements of malpractice are absent in the claim and move for dismissal of the case.

The Doctor’s company is a highly respected organization providing malpractice insurance to doctors and other healthcare professionals.  They specialize in the defense of malpractice claims and their website offers videos and other timely information for those who have been named in a medical malpractice claim.   They note that it typically takes about 2 years for a case to go to trial and there are many steps that must be taken along the way.  That said, here are a few important guidelines for you to follow immediately after notification of the claim:

• Notify your insurance carrier and the risk management department of your organization.  They will review the claim and assign legal counsel.
• Do not discuss the case with anyone.   What you say to your attorney is privileged, anything else is discoverable and must be revealed if requested by the patient’s attorney.  If you talk to the surgeon or others involved in the case outside the presence of your attorney, the discussion must be shared with the patient’s attorney if they request it.
• Do not alter the records.  Any corrections or notes added to the record after you have been served with the lawsuit will appear as a coverup and work to your disadvantage.  During discovery, your attorney will obtain a copy of the medical record to share with you so it’s best NOT to open the record on your own.
• Listen to your attorney.  Your attorney is your ONLY window to defense of the case.  Trust that they know how to build the defense and cooperate with requests from the legal team.

As mentioned earlier, the wheels of justice move slowly and even though you want quick resolution, it may be several years before the case is resolved either through settlement or at trial.  Along the way, you will experience several important steps.

• Your attorney will respond to the claim, will likely deny all the allegations and make a motion to dismiss the case.  Unless the claim is totally off the wall, the case will likely proceed.
• Discovery.  This is a long process that will likely take well over a year.  Medical records will be obtained and reviewed by expert witnesses for both the patient and the defense.  Depositions will be taken from you, the patient, the experts, and others who may have been involved in the case.  I will share more information about the deposition later in this article.
• Preparation for trial.  Your legal team will likely have several sessions with you to prepare you for trial.  They may contract with a third party to help you prepare for the trial.  Regardless, it will likely require you to take several days away from work to prepare for the trial.
• Settlement.  Many cases are settled out of court.  Often, the patient receives monetary compensation without a verdict of guilt against you.  Your insurance policy may give the right of settlement to the insurance company and if you insist on a trial, it is at your own expense.
• Trial.  When a settlement is not reached, the case proceeds to trial and both parties present evidence to support their case.  Ultimately, the jury gives the final decision.

Your deposition is an important piece of the discovery process and requires your due diligence when preparing for the event.  At deposition, you will be under oath, and a court reporter will create a legal record of every word that is said.  The patient’s attorney will ask pointed questions aimed at strengthening their case and will question everything on the medical record as well as your memory of the case.  Because it is difficult to get everyone in the same place at the same time, depositions are commonly done by zoom.   Be aware that zoom depositions are recorded and the patient’s attorney may play clips from your deposition during the trial.  The bottom line is that you must prepare for the deposition and assume that whatever you say during the deposition will be recorded and played to the jury…think before you speak.

At trial, both sides will present their side of the story to the jury.  Expert witnesses for both the plaintiff and the defense will add to the story by providing technical explanations and offering their opinion as to what likely occurred.  The medical record will be examined piece by piece with each side putting their spin on the importance of the information.  You will likely be called to the witness stand to testify and the plaintiff’s attorney will quickly point out any discrepancies between your testimony, your deposition, and the facts documented in the medical record.  In the end, both sides will make closing statements, and the jury will decide the case.

Hopefully, you will never be named as a defendant in a medical malpractice case, however, it is important to be aware of the legal process.  It is equally important to understand the importance of a timely and accurate anesthesia record.  When a case is out of the ordinary or could possibly end in a lawsuit, take the time to re-read your record to ensure accuracy and add notes to explain unusual events.  As stated previously, your record will be used to tell the story and can only be altered/amended at the time of the case.

Sometimes bad things happen to good people.  If you are on the receiving end of a lawsuit, don’t panic…follow the steps above and know that your life will continue long after the jury reaches a verdict.

Tom is an experienced leader, educator, author, and requested speaker.  Click here for a video introduction to Tom’s talk topics.