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Dynamic Chiropractic – February 27, 1995, Vol. 13, Issue 05

The Stress of Malpractice

By Arnold Cianciulli, BS,DC,MS,FICC,FACC

The malpractice lawsuit takes a significant emotional toll. The incidence of one DC per 20 facing malpractice litigation is low compared to 14.6 percent for allopathic medicine, but when it affects you, it's a 100 percent disaster.

The NCMIC files reveal that over 60 percent of all cases filed against DCs are frivolous. Nevertheless, they must be defended and at great financial and psychological costs. To help the defendant DCs during this stressful period, NCMIC has established a hotline to assist the doctors. It is being well received by the insureds.

Are there some courtroom pearls which would help all of us? Let me share some ideas with you. I hope this advice will never be needed.

  1. You can't prevent a lawsuit. Therefore, you must take time to document your rationale for assessment and treatment in your office notes. Illegible notes which can't be read two years later will only frustrate you.
  2. Make every effort to communicate with your patient. Make sure they are part of all decisions and clearly understand your treatment plan. Don't treat patients like inanimate objects.
  3. When you are served with the legal papers by the sheriff's office, don't panic and don't call the plaintiff (patient) or the plaintiff's attorney. Do immediately call your carrier and get their advice. After your rage reduces a few degrees within the next day or two, pull out all your office records on the plaintiff and reconstruct your rationale for doing what you did. Piece together your thoughts, starting with the patient's history and all the subsequent steps leading to the alleged malpractice incident. Needless to say, do not delete or add anything to your records, otherwise your credibility is zero and the plaintiff's lawyer will be thrilled at your blunder.
  4. Make sure your lawyer is knowledgeable about chiropractic treatment. Work with legal council so that he or she is educated on the specific issues of your case. By working together, you will be better able to develop defense strategies. Make sure your defense experts are appropriate to the malpractice charges. It will do little good to have a qualified neurologist/orthopedist when the case involves cardiac pathology. You need experts relevant to the alleged liability.
  5. Don't attack your lawyer because your frustrated. Don't blame your lawyer for your legal entanglement. Your lawyer is on your side and so is your insurance carrier.
  6. Go back to basics. That is, prepare yourself. Review the current literature and become knowledgeable about all aspects of your case. Leave nothing to chance. Use charting, diagrams, and anatomical models to educate the jury as to your rationale for doing what you did. The more homework you do, the more confident you will be in court.
  7. Dress conservatively. Listen to your lawyer's questions, and don't go beyond the question. The more you speak about irrelevant issues, the deeper you are digging your own hole. Remember the enemy is listening and your day in court is legal warfare. Maintain silence when it is warranted. Outrageous statements will sink you. Maintain a moderate demeanor.
  8. On the stand, speak slowly, carefully, and talk directly to the jury. Don't try to outgun the plaintiff's lawyer and keep in mind what Connie Chung did to Mrs. Gingrich. Finally, when confronted with something you are not fully aware of, calmly admit you are unacquainted with the issue. You don't have to be omniscient. You are a highly trained human being, but you are not God.

While malpractice has a staggering personal affect, keep in mind that life goes on after the lawsuit. If it is of any comfort, some of the best doctors get sued.

Your educated to treat the sick and care for people. Until tort reform becomes a reality, and contigency legal fees are not allowed, all doctors are at risk because anyone can get sued, not just the incompetent.

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