Keeping Your Own Counsel
Most physicians will face a medical malpractice claim at some point in their practice. Medicine is often collaborative. When receiving notice of a civil suit or claim, physicians may feel the instinct to talk with others involved in the patient’s care or in their field, whether it is to discuss the medical issues presented in the lawsuit or to cope with the stress of being named in a lawsuit. The best course of action, however, is to resist that impulse and keep your own counsel.
When you become aware that a claim is being made against you or will likely be made against you in conjunction with patient care, you should not discuss the suit or claim with your colleagues. Instead, limit your communications and discussions to your risk manager, malpractice carrier, attorney, or spouse.
First, this keeps your discussions protected. There are certain privileges that apply under Kentucky law. For example, the attorney-client privilege shields confidential discussions you have with your attorney. Generally, this allows attorneys to give their clients the good, the bad, and the ugly about a case and to engage in frank discussions on strengths and weaknesses without those communications being hindered by fear that they will be disclosed to the other side of the case and used against the client. Likewise, this allows clients to express concerns and talk though the issues involved in a case candidly.
At first blush, there may be a tendency to doubt yourself or to question your care simply because a claim has been made against you and the situation is stressful. As time passes, however, you will have the opportunity to step away from the emotional component of the case and reassess. With that different perspective, with the assistance of reviews by expert consultants in your field retained by your attorney or carrier, and with the acquisition of new information about the patient through the discovery process, your impression of the case may evolve. Protecting communications allows you to adjust as you learn new information without your initial impressions being used against you later in the case.
Kentucky law extends this protection to liability insurance carriers as well. The rationale is that these insurers are often charged with obtaining information and documents to share with retained defense counsel. Additionally, most insurance policies require insureds – including physicians – to cooperate in their defense by providing information and participating in events as needed.
Under Kentucky law, there is also a privilege for confidential discussions with a spouse that occur during marriage. Kentucky also recognizes privileges that apply to discussions with counselors, the clergy and psychotherapists within certain parameters. There are privileges under state and federal law for discussions protected as peer review or patient safety work product. However, these have specific parameters and limitations and do not necessarily apply to every discussion that may occur between health care providers. Your conversation with your colleague may not be privileged and, if that is the case, could be discovered and potentially used against you later in the lawsuit. Your attorney, adjuster, or risk manager can advise you on how best to navigate these discussions to maintain privilege.
Second, keeping your own counsel helps you maintain your memory of the events that are central to the case. Patient care typically involves several healthcare professionals that coordinate but serve different roles. Each will have their own unique involvement in the patient’s treatment and, as such, their own memories of the care at issue. When a lawsuit or potential claim is flagged, there may be an instinct to talk to the other involved providers to see what happened with a specific part of the treatment or what they remember about the patient.
Over time, it can be difficult to remember what you personally saw or experienced, rather than what another involved health care provider told you about their own memories. If you need to provide information to assist in the defense of the suit, attorneys are typically interested in what you personally saw, heard, and did. Differentiating between your involvement and what you may have heard from someone several months ago when you first learned of the claim or case can become difficult.
Finally, by engaging in these discussions you may inadvertently make a colleague a witness in the case or, if they are already involved, impact their testimony about their role in the care. In lawsuits, attorneys often ask whether parties have discussed the case with others. They are not allowed to get into privileged communications (as discussed above), but they are permitted to explore non-privileged communications. A patient’s attorney may seek to take the deposition of the colleague simply because you had a non-privileged communication with that person.
Even if your colleague is likely to be involved in the case as a party or a witness, do not discuss the lawsuit or claim with them. At a later date, it is possible that both of you will be asked to testify under oath about the discussion. Your respective recollections of the conversation or the details of each other’s involvement in the patient’s care may differ. If that occurs, the patient’s attorney could use your testimony to cast doubt on your colleague’s testimony and vice versa.
For these reasons, resist the urge to discuss a lawsuit or claim with your colleagues. Limit your communications to your risk manager, attorney, carrier, and spouse. This will let you openly assess and discuss the case, adapt to new information, maintain your memory, avoid making a colleague a witness, and preclude potentially impacting the testimony of another provider in the case. Your risk manager and attorney can advise you on whether and to what extent you can engage in additional communications on a case-by-case basis. Otherwise, keep your own counsel.
Jamie Wilhite Dittert is a Member Attorney practicing in medical negligence and insurance liability defense at Sturgill Turner. She can be reached at jdittert@sturgillturner.com or (859) 255-8581. This article is intended as a summary of state and/or federal law and does not constitute legal advice.
This article originally appeared in the Lexington Medical Society August 2026 Newsletter.
