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Legal Communications: Verbal, Written, and Electronic Communications in Malpractice Litigation
Arturo Toro Flavio Gilio Andrade de Meneses Mark C. Norris
Learning Objectives 1. Understand the prevalence of malpractice litigation and its impact on healthcare providers. 2. Gain knowledge of the step-by-step process involved in the life cycle of a malpractice lawsuit, from initiation to resolution, including key stages and legal requirements. 3. Comprehend the scope of discovery in malpractice cases, including the specific information and types of communication that may be subject to investigation by the plaintiff, as well as those that are protected by legal privileges. 4. Appreciate the legal best practices for verbal, written, and electronic communications in the context of a malpractice suit, ensuring compliance with legal requirements, protecting patient confidentiality, and minimizing potential risks associated with communication during legal proceedings.
Introduction Medical malpractice lawsuits are unfortunately a common occurrence in the field of medicine, with a significant percentage of physicians facing legal action during their careers. The implications of such lawsuits and the role of communication in influencing their outcome cannot be understated. Understanding the legal system and how communications can impact malpractice cases is crucial for healthcare providers to navigate these situations effectively. While this chapter offers educational information, please note that it does not substitute for legal advice, and specific legal inquiries should be directed to licensed attorneys. In the realm of medical malpractice, process begins with a complaint made by the plaintiff, highlighting alleged failures to meet the standard of care that resulted in injury or damages. The discovery phase entails gathering relevant information, often including specific conversations and communications related to the civil lawsuits are the most prevalent and follow a defined sequence of steps. The
patient’s care. However, not all communications are subject to disclosure, as privileged conversations enjoy legal protection. This chapter delves into the concept of privileged communications and explores various scenarios where seemingly protected conversations can become discoverable. It also addresses digital communications and their legal implications. By familiarizing themselves with basic medicolegal concepts, clinicians can better navigate the complex interplay between medicine and the legal system, ensuring that communications are mindful and avoiding unintended consequences. As stated in a 2011 editorial in the New England Journal of Medicine, each year, 2.3% to 7% of U.S. physicians will be sued. Depending on their specialty, 34% to 99% of physicians will be sued over the course of their careers. Anatomy of a Civil Lawsuit Malpractice allegations are commonly addressed through civil actions that follow a predefined process. It all starts with a complaint filed by the
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