A digest of an article published in the May 5, 2006 edition of Medical Economics.
Plaintiffs are filing "shotgun suits" against several doctors in the hope that they'll end up blaming each other. This is the basis of many an attorney's war stories about one co-defendant trying to escape liability by blaming the other. On the plaintiff attorney's side, they love it as the doctors destroy each other.
So what's a doctor to do? That is not an easy question to answer, as there are arguments for both sides.
Defense attorneys in a malpractice case, if they sense any potential conflict between their clients, will often get together to plan a joint defense. That enables them to share the expense of expert witnesses and exchange information under client-lawyer privilege so that it is not discoverable by the plaintiff. If a defense lawyer learns that any of the co-defendants are planning to finger his client to save their skin, he'll try to discourage them from giving damaging testimony against his client. The goal of such joint defense strategies is to stop the defendants from cutting each other up. They'll also try to get them to accept collective responsibility (when a case looks bad) and hopefully arrive at a fair level of compensation.
Sometimes, though, it doesn't pay to be a team player; particularly when a physician bears little or no responsibility for the patient's injury. By binding together with the others, he may become part of the settlement. Regardless of the monetary amount or his limited individual liability, the settlement must be reported to the National Practitioner Data Bank, his state medical board and (at a later time) when renewing credentials with hospitals and health plans. It could also result in premium increases on his liability insurance.
Once you've been sued, let your lawyer best determine how to deal with your co-defendants. Utilize your energy to review your records in preparation for the deposition.
At the deposition, be ready for attacks by the plaintiff's attorneys and possibly the attorneys of your co-defendants. Let your attorney deal with that when he cross-examines them.
If asked leading questions about what the other doctor should have done, try to discuss what you did; not what anyone else did or did not do. Avoid answering questions that deal with a specialty outside of your own. If you didn't receive tests or other information from the other doctor, don't criticize the doctor. Instead, you can comment on what you would have done differently if you had had the information in time.
Bottom line, basing a defense on blaming the co-defendants can get messy as they will probably engage in the same strategy. Everyone gets dirty in a mud fight.
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