Sprader advises early attorney consultation on potential malpractice suits in July edition of Emergency Department Legal Letter

In a recent edition of the Emergency Department Legal Letter, Bricker & Eckler heath care partner, Bobbie Sprader, advises Emergency Department (ED) providers not to wait for a notice of intent to sue before contacting their professional liability carriers and requesting to speak to an attorney, as early consultation can bolster the emergency physician’s (EP) defense in the event a lawsuit is filed. Waiting until a suit is filed or a deposition is requested “can put the EP at a distinct disadvantage,” Sprader says. Speaking with an attorney early in the process after an unexpected bad outcome has several advantages for the EP, as the attorney can assist with finding the best way to preserve evidence such as audio and video recordings that could help the defense; such records are often maintained for only short intervals and could be lost by the time a case is pending. The attorney “can help the EP find the best approach to preservation.” Additionally, the attorney can:

• advise the EP about applicable protections so the EP does not engage in conversations where there is no protection
• request a hard copy of the ED medical records so the EP can review the patient’s chart without going into the EMR, which could complicate the defense of the claim
• help the EP “consider how to best preserve their recollection of events above and beyond what is in the hospital record” soon after the event, when specifics are easier to recall than when the lawsuit is filed, often months or years later

Sprader notes EPs may hesitate to call their professional liability carriers out of concern for negative consequences such as higher insurance premiums or possible loss of coverage. But if they wait until a lawsuit has been filed, the plaintiffs will have performed “at least an initial investigation,” so EPs need to be proactive in preparing for a defense.