Malpractice Consult

By Lee J. Johnson, JD

Get lawyers' promises in writing

• Don't offer expert opinion if you've had any involvement in the case.

• An oral promise isn't worth as much as a written contract.

• Mistakes or misunderstandings can void any contract.

Q: A plaintiff's attorney asked me to review medical records concerning a case at my hospital. Before I agreed, I asked if I could be named as a defendant if the lawsuit cast a wide net, naming the hospital and other physicians. He replied that he saw no reason to do so. On preliminary review, I thought the care rendered by the treating physician was substandard and negligent. Should I write a full report and agree to testify as an expert witness? Can I be sure the attorney will keep his word?

A: Don't do any further review of the records or provide any opinion to the lawyer until you've taken some steps to protect yourself. First, ask the lawyer to sign a written covenant not to sue you.

What the plaintiff's attorney has essentially done is made an offer for a contract. As an expert witness, you'll agree to review records, give an oral or written opinion, and possibly testify in court. The attorney agrees to pay you for your time, and, in this case, he also promises not to sue you.

Ask for a written contract, which carries more legal weight than an oral one. A contract may also be implied from the action of the parties, however. So if you just go ahead and render an expert opinion, many courts will hold that you have an implied contract. But you can't count on that.

Second, determine whether you had any involvement in the case. If you were involved, but didn't make it known, either through deception or because you forgot, the contract and the lawyer's promise not to sue you could be voided. Let's say it's later revealed that you either examined the patient or had some supervisory role over the treating physician. The plaintiff's attorney then won't be held to his part of agreement.

That's what happened in a complicated case in North Carolina. The plaintiff's attorney assured a neonatologist that if she spoke with him, he wouldn't sue her. So she gave him information and opinions about the care of the treating physician. It was later discovered that the neonatologist had in fact assisted in the patient's resuscitation, although she wasn't named in the progress notes. The doctor had simply forgotten about the incident because it had happened eight years before the attorney contacted her.

The attorney sued her for malpractice, along with the hospital and the child's pediatrician. The neonatologist countersued for breach of contract. The attorney denied promising not to sue her. An appeals court ruled that her case against the lawyer should go to trial, and a jury determined that there was an implied contract not to sue her. However, the North Carolina Supreme Court held that the attorney had no authority to enter into a contract on behalf of a minor without prior judicial approval. So the legal battle goes on.

Any doctor faced with a similar situation must make sure there is no mistake or misunderstanding before entering into any agreement. If you have only an oral agreement, document the conversation as best as you can remember it.

 

Lee Johnson. Malpractice Consult: Get lawyers' promises in writing. Medical Economics Dec. 5, 2003;80:96.