With electronic communication and recording taking the medical community by storm, defense litigators practicing in the medical community are now educating their clients on matters their corporate counterparts have been dealing with for years—the right way to electronically communicate with each other. Plaintiff lawyers—for better or for worse depending on what side of the “v” you are on—are becoming far more savvy in the world of tech and metadata. But the words used in these communications are often chosen casually.
Words written in email and text are just as “etched in stone” as formal correspondence for purposes of litigation. This extends not only to how internal communications are conducted at the provider groups we represent but also direct patient-provider contact. Creating faster and more accessible means for patients to communicate with their treaters, and treaters to communicate with each other—while absolutely commendable from a care delivery standpoint—creates new risk. With ease of access we all tend to reach out (and comprehend) substantively in a more informal manner. This leads to miscommunications, flippancy and more importantly—misses. At its worst, we have seen collegial text communications actually drag doctors into lawsuits. I have literally seen email chains with the subject line “smoking gun.”
This is a scary proposition for our clients who have become so dependent on this type of communication to deliver better and more efficient patient care. There is no easy answer. Defense lawyers would always like their clients to simply pick up the phone and call someone first—preferably counsel him or herself. This is often not tenable. So, we have to advise our clients on (1) first identifying risk situations where discretion is advisable and (2) how best to communicate. We give them the 101 on what is attorney-client or work product privileged and what is not (e.g., simply copying a lawyer is not sufficient). But, we have to be honest that these matters are often circumstance-dependent. The “cheat sheet” version of our ultimate message is correspondingly (1) when in doubt assume it is a risk situation and (2) less (preferably none) is more when it comes to what you are writing.
The best advice is that which I received as a baby lawyer from a senior partner—assume everything you put in writing will end up in front of a Judge or on the front page of a newspaper. If we have convinced our clients to think about that before they hit “send” we feel we have done our job.
Jesse Broocker is a partner at Weathington McGrew, where he practices in the areas of medical malpractice, products liability and commercial litigation.