Coffey Modica Managing Partner, Megan Bryson, was quoted in Healthcare Risk Management offering guidance for how health practitioners and facilities should respond to notice of a lawsuit on the issue of immunity concerns.
By Greg Freeman | July, 2025
Receiving notice of a lawsuit can ruin any risk manager’s day, but how you respond can dictate the ultimate outcome. The best approach is to have a plan in place and execute it carefully once you receive the news.
The number one thing that defendants tend to overlook until lawyers get involved is implementing a document hold, says Heather A. Lee, JD, senior counsel with the Foley & Lardner law firm in Tampa, FL.
“It’s very important to immediately pause all routine document destruction policies. Sometimes, in responding to a lawsuit and making sure that you have counsel on board, that sort of thing that can be missed,” she says. “Implement a document retention right away just to make sure that documents are not accidentally destroyed in the ordinary course, which could later be relevant in litigation. Then that will lead opposing counsel to make arguments about spoliation of evidence.”
Lee notes that the preservation order should include any text messages on personal phones that might relate to the case.
It also is important to be mindful of deadlines, she says. Make sure you pin down the exact date of service, and if you are unclear, reach out to opposing counsel right away, Lee says. Make sure that there is clarity on the deadline for response to avoid a default judgment and that the increased costs that can come with having to get that default judgment are set aside.
“You should also check the docket to make sure that there’s no scheduling order that the court entered kind of immediately after service of the lawsuit,” she says. “More recently, we’ve seen courts are implementing these standard case management orders right away, even before return of service may be filed.”
Checklists can be helpful in responding to lawsuits, but Lee cautions that no two responses will be exactly alike. The action plan will vary according to the type of lawsuit, jurisdiction, and whether the case will be in federal or state court.
“You can have policies on the books that you can roll out to the appropriate teams and the appropriate people. For a sales matter, speak with the sales team. If it’s a contracting matter, speak with the department who might turn in that contract, that sort of thing,” she says. “They should have a routine litigation hold sort of in the can and ready to go. And then they should have the insurance contacts.”
If outside counsel will be retained for the lawsuit, start soliciting those pitches right away and get somebody on board sooner rather than later, Lee says.
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Consider Immunity Concerns
Prior to the occurrence of any incident, there is a key institutional issue that must be addressed, says Megan E. Bryson, JD, managing partner with the law firm of Coffey Modica in Westport, CT. In some states, such as Connecticut, quality assurance/peer review matters or investigations are afforded statutory immunity, but only in the context of a statutorily compliant body. Generally, in Connecticut, this applies only to a committee of a facility established pursuant to written bylaws, she says.
“Establishing a compliant committee will, in specific jurisdictions, afford a claim of statutory privilege as it relates to the investigation and findings of any such committee. Note, however, that this will not ascribe a privilege to the underlying facts themselves, nor as they relate to any ultimate action taken as a result of the same. So, a restriction of physician/provider privileges would be discoverable, but not the review/thought process underlying the same,” she says. “This mechanism is effective only if in place prior to any such investigation.”
First and foremost, public safety considerations must be addressed, Bryson says. In the context of a nurse accused of sexual assault of a patient, even if the allegations are not deemed credible at the time that they are made, HR personnel should be advised of the issue immediately to ensure appropriate handling both as it relates to patient protection and as it relates to personnel issues, she says. That may include contract/collective bargaining agreement issues, paid/unpaid administrative leave during investigation of complaint, and related issues.
If there is potential criminal/covered conduct at issue, that should be carefully considered, and decision-making regarding reporting should weigh heavily in favor of reporting any issue to appropriate authorities so as not to compound potential civil liability with issues relating to failure to report, Bryson says. This relates to potential criminal reports to local authorities as well as potential mandated reporting of suspected abuse, neglect, exploitation, and/or Department of Public Health reporting for issues such as medication errors.
States may allow for remedial action as a matter of public policy to avoid recurrence without same being theoretically admissible as evidence of negligence, Bryson says. To preserve this type of privilege, all such consideration and resulting adjustments to policies and procedures must be undertaken through proper channels, she says. As soon as there is an indication of potential litigation, a current version of the EMR should be preserved and segregated, she says. Discovery requests for metadata as relates to the EMR are commonplace in modern litigation.
“Equally important: a carbon copy of the records provided pursuant to HIPAA authorization should be preserved with related information regarding to whom and when the records were produced,” Bryson says. “This carbon copy should be preserved in anticipation of litigation to ensure a consistent record for purposes of litigation.”
Given the potential for demands relating to and production of metadata or audit trails, facilities need to ensure that providers update or complete notes in the EMR in a timely fashion, she says.
“In a case a few years ago, a surgeon failed to timely finalize/sign-out his operative note following an intraoperative issue that resulted in a patient’s death several days later. While the narrative note was predominantly drafted at the time of the intraoperative incident and prior to the patient’s death, it was not actually finalized/signed out until after the receipt of a pre-suit demand for records,” she recalls. “The unfortunate result was the automatic timestamping of the operative note months after the surgery at issue and after notice of the imminent lawsuit, based upon the receipt of the HIPAA authorization and demand for records, creating the appearance of an intraoperative report drafted post-patient death in a manner intended to favor the surgeon.”
While this interpretation was completely meritless in the context of the particular case, it created the appearance of impropriety that ultimately becomes problematic in the eyes of a jury, Bryson explains.
Three Key Issues
Bryson offers these three important considerations when responding to a lawsuit:
- Submitting a claim to the relevant insurer/insurance broker to trigger assignment of counsel — the earlier counsel is involved, the earlier attorney-client privilege and attorney work product privileges will afford further protection to investigation of the underlying issue. It is noteworthy that these privileges do not always extend to handling of these issues by in-house counsel (this can vary by state/jurisdiction).
- Involve risk management as soon as possible to ensure compliance with any triggered reporting requirements and/or referral to a statutorily compliant peer review/quality assurance (QA) committee for investigation/review.
- Carefully consider whether written statements from involved individuals should be taken and will be subject to an applicable privilege in the event of litigation — this is certainly a balancing analysis (the weight of contemporaneous/pre-suit statements on balance with the risk that same will not be afforded a cognizable privilege to protect it from discovery/disclosure in the event that any such statement is ultimately unfavorable.
Generally speaking, the mandatory reporting and peer-review/QA privileges will apply only to medical malpractice claims because there is a gray area as it relates to personal injury actions stemming from falls involving patients, she says. Those can be raised as premises liability claims and/or malpractice claims relating to failures to properly evaluate patient mobility or related issues. Additional considerations with non-medical malpractice claims might include determining whether security camera footage of incidents exist and/or whether an area of a fall (or similar case) is investigated and confirmed to be free from defects, Bryson says.
“Security footage should be preserved whether favorable or not to avoid theoretical spoliation claims,” she says. “In the particular case of an alleged defect that is not identified upon investigation, contemporaneous photos or video can be helpful in the course of future litigation to establish the lack of a defect.”
Timely submission of an insurance claim can have significant implications, Bryson says.
“In one previous case, the physician’s insurance coverage was through the employer hospital as it related to a medical malpractice claim. While the primary policy insurer was notified of the claim, a failure to submit a claim by risk management to the excess carrier resulted in a disclaimer of coverage for the excess policy for late notice, which resulted in a declaratory judgment action, ultimately resulting in a judicial determination of late notice warranting disclaimer of coverage,” she says. “While the claim ultimately settled, it necessarily triggered the threat of a bad faith action by the physician against the hospital and resulted in a settlement above policy limits at the expense of the hospital.”
Hospital or facility policies are not, generally speaking, evidence of the applicable standard of care, Bryson says. That said, in the event of non-compliance with an internal policy coupled with an adverse outcome, it will be very difficult or impossible for a jury to untether the policy or procedure from the standard of care, she says.
“To the extent that disclosure is required, if possible, a protective order should be sought, in part, to limit the use of the policy or procedure to the litigation at issue and to preclude dissemination of the policy or procedure beyond those with a need to know relative to the litigation matter,” Bryson says. “This is done to mitigate the risk of policies or procedures disclosed in one matter from being used in other matters, whether by virtue of overlap of counsel and/or sharing of documentation amongst plaintiffs’ attorneys, to establish a departure from said policy or procedure at the risk of jury conflation of internal policies or procedures with the applicable standard of care.”
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