Liability Insurance - What to do if you are sued

by James Rooney, MostChoice.com

You've been paying those insurance premiums for years, and now it's time to cash in on your policy.  Call your advisor and tell them only that you have been named in a malpractice suit.  That's it!  Don't go into too many specifics yet; what you are really doing is looking to see what kind of legal coverage your policy affords.  You may have to use a certain lawyer or pay certain fees, so find out during this phone call.  If your advisor presses for more information, politely let them know that you intend to speak with a lawyer and that you will contact them when you have done so.  (They'll understand.)   

Get thee to an Attorney!
If you have to use a certain attorney as per your insurance policy, go ahead and call to set up an appointment for the near future a few days at most.  If you are free to choose your own attorney and you already have a strong relationship with a malpractice attorney, you're in good shape.  If you know and trust a lawyer in another field, ask them for a recommendation as they are likely to know more about the attorney's record and practice than anyone else.  If you do not have an attorney you trust, call your professional association or colleagues and ask that they recommend one to you. 

Do not make the mistake of sharing your story with the people you call.  The reason you want to speak to an attorney first is that any conversation is protected under attorney-client privilege.  (Which, simply put, means anything you tell your lawyer is confidential and they cannot choose or be made to disclose anything you discuss.)  You do not know which of your colleagues will be called to testify in a trial, and by not sharing your story with them you save them from an awkward and potentially damaging situation of being forced to incriminate you in their testimony.

For the same reason, though, you can safely share your entire story with your attorney.  In fact, it is of utmost importance that you tell your attorney everything you know.  Should something you withhold come up in court, it might catch your attorney unprepared and cast doubt on your defense.  Remember that, since they are legally bound to confidentiality, you could blatantly proclaim your guilt and still be protected, so don't bother trying to hide little details that you think are embarrassing or nonessential. 

What's Next? 
So now you've spoken to your advisor and confided in your attorney.  Your advisor is most likely waiting for more information, so ask your attorney what you should and should not tell them.  (Most likely, they will advise you to fully disclose the situation.)  Under no circumstances should you lie to your advisor; doing so may invalidate your claim. 

The Best Defense is a Good...
Now it's time to decide on a defense.  If you are actually innocent, you will probably want to try to have the case dismissed or prove your innocence in some other way.  If you are guilty even really guilty you will want to focus on reducing or eliminating your responsibility. 

There are three (main) ways to reduce or eliminate your responsibility.  For the sake of clarity, we will consider a malpractice claim against a doctor resulting from a patient's fall.  Parallel defenses should be clear for other professions and circumstances.

• The doctor might claim that it was impossible for him to prevent the fall, and offer the explanation that the patient tripped over their own feet or clothing. 

• The doctor might claim that the patient went against his orders, if he ordered bed rest and the patient was walking freely without assistance.  (A professional can expect a certain amount of self-preservation from his client.)  

• The doctor might even claim that he is partially responsible, but that the patient is also responsible.  (This defense is generally a last-ditch effort to cast away liability.)

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