A Small Business Guide to Errors and Omissions

Chapter 2: Dealing with Errors and Omissions Lawsuits
Part 2: How to Keep Your Cool and Listen to Your E&O Lawyer

Finding yourself in the middle of an E&O lawsuit can be unnerving, but it's important to remain calm and follow your lawyer's instructions. Litigation is tricky business, and even a seemingly innocuous remark — if overheard by the wrong ear — can hurt your chances of winning your case.

Here are a few general tips to make the process easier:

  • Don't beat yourself up. Keep in mind that many Errors and Omissions lawsuits have nothing to do with your ability to do your job — despite what the plaintiff is claiming. Just realize that this lawsuit is a learning experience and there are steps you can take to prevent similar lawsuits in the future.
  • Be honest and thorough with your counsel. Even though the process might be scary, there is no point in lying to your lawyer or your claims representative. It will only hurt you in the long run. Strive to describe the details of the claim with the greatest precision and accuracy possible. To make his easier, it's a good idea to keep track of all client / customer / patient communication — especially when you suspect they are unhappy — so you have it on hand in case of a lawsuit.
  • Mum's the word. As with any lawsuit, you shouldn't talk about your E&O claim with anyone — except your lawyer and claims representative, of course.
  • Never say you are "sorry." You should never "admit guilt" without your lawyer's consent. Even saying "I'm sorry" or "I apologize" to the plaintiff could be used against you in court.
  • Never make decisions without your lawyer. For example, you should never tell the plaintiff you'd like to settle without talking to your lawyer first. In fact, you shouldn't talk (or write) to the plaintiff at all unless your lawyer is present.
  • Don't touch your records. Don't allow anyone to look at the records related to your claim unless you've obtained approval from your claims representative. The records should never be removed, copied, or altered in any way — including any "clarifying" remarks you may wish to add, no matter how helpful they may seem. If your case goes to trial, the altered records could damage your integrity.

Besides helping you prepare for the best defense possible, these tips also help you stay on your insurer's good side. In some cases, a failure to follow the rules could threaten your Errors and Omissions coverage.

Next: Part 3: Where Can I Find a Malpractice Attorney?