09/23/2025

Coping With Litigation: Tips for Healthcare Professionals

by Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company—OSMA's exclusive partner for medical liability insurance.

Few things in a healthcare practitioner’s life generate more stress and disruption than an allegation of professional malpractice. The first step in alleviating the uncertainty is to understand the litigation process and your role as a defendant.

Legal Procedures

Once you notify your medical malpractice insurer of a claim or lawsuit, a claim specialist will contact you to discuss the case.

Throughout the entire legal process, it is critically important that you discuss the case only with your claim specialist or your defense attorney. If you discuss your case with anyone other than your claim specialist or defense attorney, you may inadvertently waive applicable statutory privileges and involve that person as a witness, which may adversely jeopardize your defense.

Never respond to any comments posted on social media. Those could adversely impact your position in the lawsuit or even constitute violations of federal or state privacy laws.

Request for Copies of Your Records

The earliest indication of a potential claim or lawsuit may be a request for medical or dental records from a plaintiff’s attorney or the patient. Although patients have a legal right to see their records, releasing a copy of them requires a signed authorization or a valid subpoena issued by a judicial officer. Notify your insurer immediately if you suspect that a request is related to a potential professional liability action.

Notice of a Claim

A plaintiff’s decision to pursue a claim may generate a notice of intent to sue. The notice may simply be a letter from the plaintiff’s attorney. It may be triggered by statutory requirements, such as California’s and Florida’s 90-day or Texas’s 60-day notice of intent to sue. A notice from a screening panel may also be the first indication you receive.

Summons and Complaint

If you receive a summons and complaint (a lawsuit), inform your insurer immediately. This type of legal document requires a formal response within a prescribed time limit, regardless of your belief in the merit of the case. Failure to respond appropriately may jeopardize your defense or even possibly result in a default judgment against you.

An attorney specializing in malpractice defense will be assigned to your case and will file a response to the summons and complaint.

Discovery

From the outset of the claim, counsel for both parties engage in extensive discovery to understand the nature and extent of the care provided, as well as the merits of the patient’s allegations. During discovery, plaintiff and defense attorneys review all medical or dental records and other relevant documents related to the case to fully evaluate the claim. Interrogatories and depositions are two important parts of the discovery process.

Interrogatories

Interrogatories, which are written questions directed to a party by opposing counsel, are designed to further develop the facts or the legal and clinical foundation of a case. Interrogatories directed to healthcare professionals usually seek background information concerning the individual’s education, training, professional experience, and credentials.

Your interrogatory responses are legally admissible in court, so it is imperative that you review them carefully with your defense attorney, who will assist you in preparing accurate and appropriate responses.

Depositions

After record reviews and the service of interrogatories and responses, you will probably be required to give an oral testimony via deposition as part of the discovery process. Whatever you say to another person and whatever that person says to you concerning an incident that becomes the subject of a lawsuit can later become the target of inquiry during your deposition. You may also be questioned about any medical or dental literature research you performed in advance of your deposition or in preparation for testifying. 

Only your confidential discussions and written communications with your attorney or claim specialist may prove to be privileged and not subject to later discovery by opposing counsel.

Deposition Procedure

Although a deposition usually takes place in the informal setting of an attorney’s conference room or in your own office, it is a significant event. Testimony obtained in a deposition during the discovery phase frequently proves to be the single most important event of the pretrial process. It is almost always crucial to the outcome of a case.

The question-and-answer format of a deposition consists of testimony taken from a witness or party under oath that is transcribed by a court reporter. As the defendant, your deposition not only serves as an investigative tool for the plaintiff’s attorney, but it also provides a vital opportunity for your defense attorney to evaluate you in advance of the trial. This assessment has a major influence on both lawyers’ perceptions of your prospects for prevailing at trial and on the evaluation of the case for settlement. You can help your case by being well prepared about the facts of the patient’s care, conveying an air of knowledge and humility, and responding to questions in a direct and confident manner. Because video records are often made of depositions, your demeanor is an important consideration throughout the session.

Deposition Testimony

In advance of your deposition, your attorney will schedule a conference to review questions the plaintiff’s lawyer is likely to ask. Your attorney will also advise you of the best approach to use in answering the questions. Your responses should be brief, concise, and delivered in a calm and thoughtful manner. Avoid guessing when you are uncertain of the answer. It is preferable to respond, “I do not know” or “I do not recall.” 

Above all, your testimony must be truthful. It is not, however, your obligation to volunteer information during the deposition or to educate opposing counsel, and you are discouraged from doing so. Doing so may unnecessarily prolong the deposition process.

Do not misstate or embellish facts in an effort to enhance your position. Be aware that, unless the plaintiff or defense attorney notes that statements are to be “off the record,” all comments made during the deposition will appear in the transcript. During your deposition, the plaintiff’s attorney will try to elicit answers that are most advantageous to the plaintiff’s position. Respond only to the question asked, not to the manner in which it is asked. Your function, with your attorney’s guidance, is to provide truthful and accurate answers phrased in a way that least benefits the plaintiff’s position and most enhances your own.

During your deposition, your lawyer may perceive that a question is ambiguous or subject to a legal objection. Allow your counsel to state his or her objection and consider the objection when formulating your answer. The objection may alert you to an ambiguity or hidden meaning that is not otherwise apparent. Such objections frequently serve to avert answers that could be given by the witness without a full understanding of the question. Your attorney can instruct you to refrain from answering a question he or she believes is an effort to elicit information that is not legally discoverable or otherwise violates the laws governing the admissibility of evidence.

Deposition Review

You will be asked to review your deposition transcript and provide your attorney with changes or corrections you feel are necessary to ensure accuracy. It is important to avoid inadvertent mistakes in your testimony, and no corrections should be made without first obtaining your lawyer’s approval.

Ongoing communication with your defense attorney is essential while the lawsuit is pending. Always contact your appointed counsel if you have questions or would like a status update.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

Republished with permission. ©2025 The Doctors Company (thedoctors.com)

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.