How to Survive a Malpractice Lawsuit

When I was sued for malpractice, I felt lonely, scared, and attacked. But I was far from alone — even in “low-risk” specialties (including family medicine), 75% of physicians will be named in a malpractice suit at some point in their career.¹ Lawsuits are an unfortunate reality of practicing medicine, not a definition of your worth as a physician. Still, they can be emotionally draining. As physicians, we are trained to be in control, to solve problems independently, and to analyze every outcome. But defending against a lawsuit requires mastering a completely new, nonclinical skillset. By understanding the legal criteria, navigating the phases of litigation, mastering the deposition, and actively protecting your mental health, you can successfully survive a malpractice suit.

When you receive the dreaded letter on legal stationary, first take a deep breath. You will be okay. At this moment of potential panic, it is important to know what not to do:

• Do not alter medical records under any circumstances,
• Do not look in the patient’s chart until your defense attorney explicitly tells you it is okay to do so (your EHR’s metadata shows when you access the chart, and plaintiff’s attorneys may use it to imply guilt even where there is none),²
• Do not discuss the details of the case with others (the plaintiff’s lawyers may subpoena them to testify).

Your next step is to contact your malpractice insurance carrier and notify them of the suit.

Understanding your policy. Your insurance policy will generally fall into one of two categories: claims-made (which only covers incidents that occur and are reported while the policy is active, unless you add tail coverage) or occurrence (which covers incidents that occur during a policy period even if the claim is filed after the policy is canceled). The type will tell you whether you are covered for the suit under your current policy or potentially under a previous policy with “tail” coverage.³

The insurance carrier that covers the event has two primary obligations:

1. Duty to defend, meaning the carrier must retain and pay for a lawyer to defend you, as well as cover all related legal expenses,
2. Duty to indemnify, meaning the carrier must pay settlements or judgments up to your policy limits.

(If you work for the federal government, e.g., as a Veterans Affairs physician, the Federal Tort Claims Act acts as a self-insurer, accepting liability for employees acting within their official scope.)