With this weekly column, Elite Healthcare provides readers with insight related to the legal implications of healthcare – offering practical guidance on scenarios that should be avoidable and providing suggested courses of action when appropriate. The examples provided here are those that all providers should be aware of, but many aren’t or are negligent despite their awareness. Don’t let your practice be compromised.
Despite repeated preparatory meetings that legal professionals may have with their clients, there may be instances when that client neglects to mention important facts about the case. There is nothing more disconcerting to an attorney then when the “other side” knows more about his or her client than the representing attorney does.
The entire purpose of any preparation discussions is to learn of all the pertinent facts of the case. When the client is not forthcoming or does not take the time to remember all that is necessary about a specific case, it is self-harm to that client. The attorney cannot prepare for what he or she does not know. Do not be foolish; tell your attorney everything the first time and let your attorney decide what is and is what is not relevant to the case. With knowledge, uncomfortable facts can be more properly addressed. In some cases, an attorney’s knowledge about a particular fact could be the difference between a more favorable outcome and a “gotcha” moment.
In some instances, the provider in question might be the witness of some kind of administrative issue, perhaps a malpractice action. Preparation for that scenario should be taken just as seriously. Remember, when you are ‘just the facts’ witness, and you are careless in your answers, you can be added as a defendant.
The flip side is also true; you may be removed as a defendant. Knowing the implications to your answers should not prevent you from telling the truth, but often how you tell the truth can be very helpful or hurtful. If you are a defendant, your testimony should not be on an objective recitation of the facts. You must carefully review your records and any records or reports you had access to. You must remember that many things occur over and above what may be in the charts. You should not go into a deposition or any other forum that involves testimony without a level of preparation that makes you feel as if you have shared everything that there is to share about the case.
Likewise, always insist that your attorney sits down with you and prepares to a level that you feel comfortable with. Perhaps, you may need more than one dedicated “prep session.” Do not to be afraid to be the one to tell the attorney that you do not feel prepared to move forward with any official proceedings if you believe that all pertinent information has not been adequately discussed.
Joe Darrah is a freelance author based in the Philadelphia region who has been covering the healthcare field since 2004. He may be reached at [email protected]
Lawrence F. Kobak is senior counsel in the healthcare department at Frier Levitt, a national boutique healthcare law firm based in Uniondale, NY, that provides comprehensive regulatory, transactional, and litigation counsel to the healthcare on life sciences industries. He may be reached at [email protected].
