What Defendants Can Say

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What Defendants Can Say About Their Lawsuit

"It is not what a lawyer tells me I may do; but what humanity, reason, and justice, tell me I ought to do." – Edmund Burke (1729-1797)

It is normal and healthy to want to express how we feel after we experience any major life event. Research shows that talking to others about a significant stressor is a natural coping mechanism that hastens recovery. For most physicians, dentists, and other healthcare professionals, a lawsuit is the prolongation of an already traumatic event. The question is: are we as potential or actual defendants, free to talk and respond to these events in such a human way? Defendants almost alone in our culture are deprived of this support. A lawyer’s first advice is "Don't talk to anyone about it." Is this useful or healthy?

Fearful that their clients do not jeopardize their defense by saying something to a third party that may be used against them, lawyers warn them that, in depositions, plaintiff attorneys will ask whether they have talked to anyone about their case. Because we must answer such questions honestly or risk the threat of a perjury charge, we feel intimidated and cautious about talking with anyone even about the fact of being sued. How do you handle emotional reactions to litigation?

Although such a strict interpretation may be good legal advice, it is questionable psychological advice. Many attorneys and insurers recognize that such absolute prohibitions of discussing an event that is or may become a legal case conflicts with our human need to talk about any serious life event. Such a shutdown may harm both a person’s health and ability to function.

What can we do? Recognizing the tension between adhering to legal advice and acting humanly, we receive differing opinions about how we can respond. One approach is to respect the concerns of both legal and insurance counsel while recognizing our own humanity: We doctors can talk about our “feelings” regarding the event but not about the specifics of the event itself. Accepting the discipline demanded by legal counsel, we can still talk with trustworthy and understanding confidants about our reactions without going into details of the event. Some of the event’s context will naturally emerge. – it is difficult to talk about an auto accident without talking about whether it involved a car or a truck – yet the focus is on how we feel about being involved rather than on the explicit details of the event

With whom can we talk? Most support comes from spouses and significant others as well as from the attorney and claims professional. Many states provide specific immunity to spouses so it is useful to inquire about whether this provision applies in your state. Some physicians find that their personal lawyer is a source of support. Trustworthy and experienced colleagues often have wise counsel to share about their personal experiences with litigation. Some insurance companies, such as are listed under "Online Sources of Support," offer support services to physicians that allow them to share their emotional reactions to litigation with other physicians or mental healthcare professionals.

We must accept that emotional reactions to litigation are normal. We must maintain our psychological health for our own good and that of our patients, and, when we are sued, in the service of defending ourselves. Having supportive relationships in the midst of litigation diminishes our feelings of isolation and helps us achieve our goals. Each of us will make our own choices, depending on our level of comfort, our understanding of legal advice, and the accessibility of potential confidants, about how and from whom to seek such support.