Legal & Regulatory

Optimizing the Risk Management and Defense Counsel Relationship

Swamped with subpoenas and drowning in discovery? A solid relationship between the risk management team and defense counsel may smooth the way.

If dealing with lawsuits is part of your risk management role and litigation management is not in your skill set, frustration with legal processes might be a regular part of your day. Key to the success of these processes is the partnership between the risk management team and defense counsel. Cooperation and teamwork are critical to the accurate and successful handling of medical professional liability, general liability and other types of cases that cross the desk of health care risk management professionals. From filing to resolution, these cases can stretch out over months or years.

The relationship between defense counsel and health care organizations, which often flows through the risk management team, is an important one. Risk managers, both new and experienced, may be unfamiliar with various phases of litigation and how cases progress. While the big picture might be vast and overwhelming, each individual in the process needs to be aware of how their contributions, large or small, can positively or negatively influence the outcome of a case.  

Carolyn (Carrie) Stein has been a defense attorney for 28 years, specializing in medical malpractice. Stein works closely with risk management, administrative and clinical staff at a variety of health care organizations. She also has professional relationships and shares her experiences with many risk management professionals through her participation in the American Society for Health Care Risk Management and in the Maryland-District of Columbia Society for Health Care Risk Management, where she is currently a Board Member-at-Large.

Stein recently shared the Top 8 Tips she considers vital to the success of the risk management/defense attorney working relationship:

1. Identification. Defense counsel will need help identifying the people within the organization with information pertinent to the defense of the case, whether they are direct providers, have expertise in a related clinical area or have a nonclinical role, such as engineering or security. The risk management team can also confirm existence of medical, administrative and other records related to the litigation.

2. Liaison. A call from a defense attorney to discuss the lawsuit might distress an involved clinician. Members of the risk management team are important in allaying fears, acting as liaisons and encouraging their employees to cooperate and communicate with defense counsel. It might be advisable for the risk manager to sit in on attorney-clinician conversations.

3. Discovery. According to Black’s Law Dictionary, “The discovery process is an appropriate name for the period prior to when a trial begins when both sides to a lawsuit gather information that may pertain to that particular lawsuit. The discovery process can help both sides turn up facts and information that they may not have been aware of and which can help them build their respective cases.” Discovery in a civil case might include depositions, document production (e.g., medical records, hospital policies, documentation of staff certifications) and interrogatories. This process may take anywhere from a few months to a year or more, with multiple deadlines sprinkled throughout. When the attorney sends a case schedule (or Scheduling Order), adding these dates to a shared calendar is very helpful. Further, assistance in helping the defense attorney determine what documents (such as policies and procedures, job descriptions, educational materials) the organization may or may not have is critical.

4. Depositions. Defense attorneys often need help from risk managers to ensure that the staff can be made available and are willing to cooperate in telephone calls, interviews and proceedings such as depositions. It is not uncommon for a staff member to want to be compensated for their time. Working with the supervisors can help lead to mutual understandings regarding when a staff member needs to be “on the clock” but off patient care duties so that they can be deposed. Adequate coverage is essential, as having the employee witness concentrate on the deposition without worry over whether patient care is being covered can pay off with more relaxed and focused testimony. Staff members might feel more comfortable having someone from their organization (such as a member of the risk management team) present when they testify. On the other hand, some staff members may want to be as far away as possible from the organization and anyone else who works there when they are deposed. 

5. Medical records. An important initial step in the case is securing all of the medical records from the defendant facility or health care provider on the first attempt. It can create problems down the line if records keep surfacing that were not included with the initial set provided. As a proactive measure, work with the Health Information Management Department to identify parts of the legal medical record and to develop processes to be compliant in response to requests and subpoenas, avoiding prolonged document production.

6. Interrogatories. Before the draft is sent to the risk manager, the attorneys will prepare draft discovery responses — answers to interrogatories and Response to Requests for Production of Documents — based on everything they have learned about the case. At that point, the risk manager’s timely assistance is necessary for “filling in the blanks” and reviewing the responses for accuracy.

7. Deadlines. When attorneys ask for something repeatedly, they are not trying to be bothersome. This usually happens because of scheduling deadlines imposed by the court. Failure to meet deadlines may result in sanctions against your organization or, even worse, a court order saying that you cannot present certain defenses due to failures in meeting deadlines. 

8. Internal reporting. Defense attorneys want to help. If risk managers let the attorneys know what is needed on their end (for example, for their own reporting, case evaluation or setting reserves), the attorney will make sure they receive it in a timely manner.  

These suggestions will help the risk management and defense counsel teams, as well as the organization and staff, work through the often bumpy litigation process. Familiarity with the litigation framework may help the risk management team and defendants understand the rationale behind the many necessary steps, and why each individual contribution is important.

Nancy Connelly, RN, BA, CPHRM, DFASHRM is a risk management consultant with RCM&D in Baltimore. She serves as deputy chair of the ASHRM Forum and is a member of ASHRM’s Education and Content Committee.

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