If a claim has been made, or if an incident has occurred that you think may result in a claim, notify SCPIE’s Claims Department (and/or your insurance broker, if applicable) immediately. This is not the time to bury your head in the sand!
It is crucial that you report a claim as soon as possible, since different states have varying deadlines for responding to claims. Moreover, this allows SCPIE time to prepare a vigorous defense of your case.
A claim may be reported in writing, or over the telephone and followed up in writing. The report should consist of the following information:
- Your (insured’s) name, address, telephone number and policy number.
- Patient’s name, age, address and telephone number.
- Plaintiff attorney’s name, law firm, address and telephone number.
- Case facts: brief description of care and treatment rendered to the patient, the date and time when the alleged incident took place and where it occurred.
- Date of patient’s last treatment.
- Names of previous or subsequent treating physicians or facilities.
- Your assessment as to the basis of the claim: Why are you being sued?
Precautions Once a Report Is Made: What NOT to do
Information is the key to any claim. The less information plaintiffs or their attorneys have, the better the insureds’ legal position in the interim. It is critical that insureds not freely provide any pertinent facts regarding the claim to anyone other than a SCPIE claims representative, or the insured’s personal attorney or employer. What follows are some guidelines that will help preserve case integrity:
Do NOT release any records or other information prior to consulting with SCPIE.
There are some exceptions for releasing information, primarily dealing with subpoenas for medical records, and state laws that allow patients access to their own records. There are different procedures for the collection of medical records in each state. These records must be produced, pursuant to the instructions on the subpoena, within a specific time frame.
Do NOT alter the patient’s medical records in any way.
This is for your protection, as the medical records speak for your defense. They are your way of telling the jurors exactly what happened, because they are a real-time record of the events that took place. Credibility is the most valuable defense weapon a physician has on the stand; therefore, when medical records become questionable, so does the insured’s testimony.
Legitimate errors in medical records do exist. One preferred method of correction is to make a late entry in the next available space, then sign and date it. Another acceptable method is to draw a line through the error (such that the original note can still be discerned), make the correction, and sign and date it.
Do NOT discuss the case with anyone except a SCPIE claims representative or your appointed defense attorney. Discussions with other physicians or other people involved in the potential lawsuit could be discoverable. Many times these “curbside consultations” become part of the court record by way of deposition.
Do NOT place claims-related correspondence in the patient’s medical record, since the file is discoverable. Instead, copy the patient’s medical record and place that copy in a separate legal correspondence file. You can then easily refer to the medical record when discussing the claim with your defense team. Place the patient’s medical record in a secure but accessible location, so that only authorized personnel can copy it for other parties in the lawsuit.
Do NOT contact the patient or his or her attorney.
Sometimes the plaintiff’s attorney will suggest that a short discussion “off the record” will prevent the need to name you in a pending lawsuit. This discussion may actually do the opposite: It may bring you or one of your colleagues into the lawsuit. While defending your medical treatment, you may inadvertently imply that your colleague had a poor result or could have done better had he listened to your sage advice. Stating such things only adds fuel to the fire.
Remember, plaintiff attorneys get paid based upon the final settlement amount. Therefore, the larger the lawsuit and the more parties to settle with, the bigger the payday. Attorneys need little more than the suspicion of malpractice to justify suing everyone involved in the patient’s treatment.
For further information on claims management, please review the following topics:
