American Medical News
By — Posted June 10, 2013
The relationship between physicians and their attorneys is akin to that of a doctor and patient, said James Szalados, MD, JD, a New York-based medical liability defense attorney. Both parties must be honest, and trust is key to success.
“If you don't trust that person, it is not going to be a good, long-term, functional relationship,” said Dr. Szalados, who also practices anesthesiology and critical care medicine. “It's got to be an atmosphere of trust, and you have to sense that that person is advocating for you and has your best interests at heart.”
But while minor relationship challenges between doctors and lawyers are common, legal experts say certain attorney behaviors and practices simply should not be tolerated. When physicians are not receiving an adequate level of legal guidance and representation, it may be time for doctors to fire their lawyers, said Andrew B. Wachler, a Michigan health law and audit defense attorney. He is a partner with Wachler & Associates PC.
“If you think you're not getting the attention you need, losing faith or having a lack of communication, then it's time to consider switching lawyers,” he said.
Legal and medical experts say there are five reasons that can prompt a physician to fire an attorney. Being mindful of such red flags can save physicians time, money and potential loss in a lawsuit.
Without question, attorneys should be experienced in the type of claim in which they are defending, said Eric C. Tostrud, a Minnesota health law attorney and a partner at Lockridge Grindal Nauen PLLP.
“You don't go to an oncologist to treat a fracture,” he said. “You want to hire an attorney who has experience with the same problem that you're facing.”
Physicians should be wary of attorneys who say they are experienced but can provide no details to confirm their background, Tostrud said. For instance, watch out for attorneys who cannot relate the doctor's situation to past cases or give specific examples of successes, he said.
Lawyers also should know applicable state and federal legal rules and procedures, Dr. Szalados said. The most common regulations related to civil cases are procedural and substantive laws. Substantive law refers to the legal precedents that may affect a case. Procedural law relates to certain legal motions, orders and defense time frames.
If your attorney is not demonstrating knowledge in these essential areas or is making frequent legal mistakes, it may be time to hire new one, legal experts said.
“Process and procedural law is very important,” Dr. Szalados said. “You can make or break a case based on deviations” from such rules.
Consistently failing to call doctors back or explain how a case is proceeding are other unacceptable practices, Tostrud said. By nature, most doctors are detailed communicators, and they deserve the same responsiveness from their lawyers, he added.
Attorneys should communicate “as often as the doctors want,” he said. “I've represented physicians where if they're thinking about the case at 10, 11 at night, they know they can call me at home. For hardworking doctors who put in hard, unusual hours, that's a reasonable expectation on their part.”
Wachler added that lawyers should make physicians aware of the case's progression and relay updates. Doctors also should feel comfortable asking questions.
Doctors and lawyers should set the correct communication tone in the first meeting, said Linda M. Stimmel, a medical liability defense attorney in Texas. Some physicians want to know everything about a case as it moves forward, while others want to know only about significant occurrences.
“Some physicians say to me, 'You don't constantly need to send me everything. It stresses me out,' ” she said. “Others say, 'Send me everything.' You have to decide how much involvement you want and make sure your attorney understands that.”
Being communicative goes both ways, said Nathan A. Kottkamp, a Virginia-based health care attorney and partner at McGuireWoods, LLP. Having a strong case means doctors must be truthful with attorneys about new information or case details, he said.
“The worst possible thing you can do is surprise your attorney,” he said. “It can be disastrous. If you're already in a lousy situation, it's only going to get worse if you don't tell your lawyers” everything.
Physicians should keep their eyes out for attorneys who are extremely disorganized — a trait that can have serious consequences, Kottkamp said. Obviously, some degree of untidiness is probably acceptable, but constantly misplacing papers and documents is a red flag, he said.
“There are attorneys where you will walk into their office and you will panic,” he said. “You will say, 'How is it possible that this attorney will know where my document is in this pile of papers?' You want to look at their organizational skills.”
Likewise, consistently showing up late to meetings, forgetting conference calls or missing deadlines should not be tolerated, Tostrud said. Failing to meet a court deadline could result in a default judgment against a physician.
“Litigation requires fastidious organization,” he said. “We live in a world of deadlines. In order to [succeed], we have to meet them.”
Even minor typos in legal documents should be noted by doctors and brought to the attorney's attention, Tostrud said. Once mentioned, any mistakes should be quickly fixed.
For example, Tostrud represented a doctor named Philip whose name was inadvertently spelled with two “l's” in a legal document. The doctor noticed the misspelling right away, and Tostrud made sure every document after that was corrected.
“Doctors, their livelihood depends on that type of attention to detail, and they deserve that kind of attention from their attorney,” he said. “If the lawyer doesn't fix it right away, that's a problem.”
Refusing to abide by doctors' instructions or ignoring their wishes is perhaps one of the most egregious attorney offenses, legal experts said. Stimmel has heard from frustrated physicians who wanted to settle, but the attorney went to trial instead.
“Sometimes the ego of an attorney is so strong that they care more about their style and their needs in litigation than what's really important to a physician,” she said. “I know attorneys who love to go to trial. They love to be very aggressive. Sometimes the ego of an attorney will take over.”
Doctors should make sure the attorney is fully aware of what direction they want to take the case, she said. If those wishes are dismissed, physicians should consult with their insurance company or contact another attorney.
In cases in which an lawyer is representing several doctors or a group practice, physicians should feel that the attorney is taking time to hear all viewpoints about case resolutions, Tostrud said.
“Until internal disputes are worked out, with or without the assistance of a lawyer, the attorney should not charge ahead,” he said. “The worst-case scenario is that you proceed and really you don't have the authority, because you're not honoring the wishes of the [entire] group.”
For medical liability cases, physicians should include a clause in their insurance contracts that allows them to control whether their case settles. Some clauses say an insurance company has the final say in how a suit is resolved. In other cases, such as privileging disputes or contract matters, physicians generally have full control over case resolution.
Being sued can be one of the most devastating and life-altering occurrences in a physician's career, Dr. Szalados said. A good attorney empathizes with clients and helps walk physicians slowly through the difficult process, he added.
“You've got to feel that someone is listening to you and really willing to advocate for your rights,” he said. “Someone is challenging your professional capability and your professional judgment. Having an attorney who understands that and who can work with you is very important.”
Such characteristics in an attorney frequently help a case in the courtroom.
“Projecting that image to the jury and judge, that you know what you're arguing for is the right thing,” helps the doctor's case, he said. “If the jury likes him and likes [the doctor], it makes a big difference.”
Before terminating an attorney relationship, physicians should sit down with their lawyers and spell out any concerns about the attorney's conduct. Sometimes, an attorney is merely unaware how his or her actions affect the doctor, Kottkamp said.
“You want to be vocal about it,” he said. “In this kind of legal market, lawyers can't take their clients for granted. Some need that nudge; others aren't going to change their ways at all.”
If the relationship doesn't improve after the meeting, a final farewell could be necessary.
“That's an indicator you may need to find someone else,” Kottkamp said. “It doesn't do you any good to stay with a lawyer [who's] not serving you well.”