Malpractice Lawsuits
Malpractice Lawsuits
Being sued can be one of the most distressing events in one’s life. Suing someone else can also be distressing but necessary. Disputes are part of human nature, but litigation in our country is out of control. Litigation is highly complex and the rules vary from state to state and even town to town. However the basic principals are the same. Litigation should always be a last resort. Normally when there is a dispute, the injured party makes a formal demand on the injuring party. Sometimes this is called a demand letter. The letter states what is being asked and the consequences of not receiving it. Some lawsuits aren’t about money at all, but are filed to force someone to do something, or force them not to do something. US lawsuits have three different phases:
- The complaint phase which is where you make your allegations,
- The discovery phase where you exchange information and take depositions, and
- The trial phase. In between you have motions of all sorts and hearings which are like little mini-trials.
The Complaint
The complaint phase is probably the most important because if you make a mistake your suit could be dismissed before any evidence is presented – or worse you get sanctioned for filing a frivolous suit. This is where you state each claim you are making, the legal basis for the claim, and any legal authority to back the claim. You also have to choose the jurisdiction of your suit, name the parties and request the type of relief you are seeking. Once you file your suit with the court clerk you are issued a cause number and the suit is a matter of public record. In many cases a great deal of personal information about you is in the suit and can be accessed by anyone who cares to look. This is an important consideration if publicity could potentially harm you. Once you have a cause number you will receive a citation from the court and must “serve” the defendants with the lawsuit using a constable or private process server. Unfortunately you can’t just mail the suit or drop it off. A process server must be a disinterested party who physically hands the papers to the defendants.
Once the parties are served they have 20 days (in most places and 10 days in small claims court) to file an answer. The answer could be anything between, “gosh you’re right I will pay you whatever you want” to a general denial which means they deny each and every claim. In most jurisdictions the discovery phase begins as soon as the parties are served. Discovery is where things get interesting.
Discovery
Discovery means each side is entitled to “discover” certain types of information. Not just information that can be used as evidence, but information which is “reasonsably calculated to lead to evidence”. Some people file suits just to use discovery. Other times attorneys use it to bury someone in requests which drive up their legal costs. Courts are savvy to the latter and are quick to order sanctions when the discovery process is abused. In most jurisdictions the rules of discovery are similar. Each state has rules of civil procedure as do the Federal Courts and some courts have local rules that supplement the main rules. Whether you are representing yourself or are an attorney, you have to follow the rules very closely. Your goal in discovery is to obtain all the evidence you need to convince the judge or jury that you are entitled to win the suit.
Generally there are several types of information you may obtain and methods of obtaining it. Generally there are requests for disclosure, requests for admisstions, written interrogatories, depositions upon oral examination, requests for production of documents and more.
Depositions
With oral depositions which are video taped, you don’t have to have a court reported take down and transcribe the deposition unless you plan to use it in court. However you can learn a great deal through depositions. The way it works is you have a court reporter or notary swear in the witness, turn on the video and start asking questions. Depositions may be set by agreement between the two parties or if they won’t cooperate or return phone calls you can simply follow the rules to “notice” a deposition. The notice must be sent to the party or attorney of record, contain the time and place of the depositions, how it is being recorded and who is swearing the witness. In some places you much disclose who all is attending. If you notice a deposition, the other party may object by filing a motion with the court. This motion requires a hearing, which is also time consuming and expensive. Hearings can take hours depending on when you get called. If you properly notice the adverse party of a deposition and they don’t show up, you can file a motion to compel the deposition and ask for sanctions against them. Judges don’t like it when parties fail to cooperate in discovery.
Once the deposition is under way you may ask almost anything from the person’s personal life, professional background or their knowledge of the facts of the case. In Texas there are only two types of objections to a question, 1. Form – which means they don’t like the way the question was asked and you may re-ask it or 2. Direct the client not to answer the question to preserve a privilege. Privileges are beyond the scope of the blog, but include client-attorney privilege, husband-wife privilege, law enforcement privilege, and refusal based on the rule against self incrimination.
It is important to know the rules about depositions before you take one, especially if you aren’t an attorney and the other side has one. It is also interesting to note that your opponent if they have an attorney will spend $600 to $25000 per deposition while it may cost you nothing (unless they counter sue and win). Any objection you feel wasn’t justified may be presented to a judge through a motion to compel answers. Here the judge will decide (at a formal hearing) what they must answer, again a time consuming and expensive venture assuming the other side is represented.
Requests for Production (or inspection) of Documents.
Other types of discovery are written forms: requests for document production or inspection, written questions called “interrogatories”, and request for admissions. Suppose you are suing a car dealer for failing to honor a warranty. You may request any and all records relating to your files kept by the dealer including contracts service records, notes, memos etc. This is called a request for production. You may also ask for documents relating to their internal procedures regarding warranties, a list of other lawsuits relating to warranties, anything else you think might be helpful to you. The dealer does not have to provide anything that is not in its possession. For example a “list” of other parties who have sued the dealer may not exist even though the company knows who has sued them you can establish a pattern of behavior it may elevate your claim to include deceptive trade practices in addition to breach of contract. In Texas the act which governs deceptive trade practices carries the possibility of treble damages and attorneys fees. In this case you would submit “Written Interrogatories”. The rules differ in various jurisdictions, but you are allowed to ask simple questions up to the limit of that jurisdiction. Request for Disclosure is automatic in Texas. This means you are entitled to certain information that the other side cannot object to. For example, you are entitled to know the correct names and contact information of all the parties, the legal theories relied on, This request is simple of list of things you want the other side to either admit or deny. The only time this is helpful if it helps you dispose of a list of fact questions early on. For example, did I buy a Chevy Malibu on January 1, 2005, was the salesman John Jones, was the price $34,000. This makes is easier later to “assume facts in evidence” without having to reestablish those facts. You can also sneak in questions like did the salesman offer free roadside assistance? Was I promised a loaner care etc. Some admisstions are so obvious they must answer, while others may be more incriminating to them. Who is in charge, who decided not to honor your claim, what is the precise chain of command, You may also ask other victims of the same dealer for their testimony if it will help you.
Often times, discovery leads to more disccovery. You may discover that the person who denied your claim was someone you never heard of. In this case, you would want their testimony or add them to your witness list. The point here is you never would have known their identity had you not sought it. If you get stuck, you can always ask an attorney for help.
Introduction
Beginning of a Lawsuit
A lawsuit begins when someone goes to the courthouse and files a complaint against someone else. The person suing is the plaintiff. The person or company being sued is the defendant. A complaint is a document which explains who the plaintiff is, who the defendant is and why the plaintiff is suing the defendant. The complaint must be filed within the applicable statute of limitations. A statute of limitations is a law (sometimes a state law and sometimes a federal law) which limits how long a plaintiff can wait before bringing suit.
When the plaintiff files a complaint, he or she also files a summons. The summons provides the address of the defendant and explains to the defendant that it (or he or she) has been sued and it has only so many days to respond. The complaint and the summons are served on the defendant — typically by a sheriff’s deputy (in a state court lawsuit), a federal marshal (in a federal court lawsuit) or via certified or registered mail.
Upon receipt of the complaint and summons, the defendant has only so many days to file a response (in federal court it is 20 days). The response usually filed is an answer. The answer responds to each allegation in the complaint by either admitting the allegation, denying the allegation or stating that the defendant does not have sufficient knowledge to either admit or deny the allegation. Also, the defendant will raise any defenses it has to the lawsuit in the answer. For example, if the defendant believes that the lawsuit was not filed within the statute of limitations, it will assert the statute of limitations as a defense.
However, instead of filing an answer, the defendant can file a motion to dismiss. This motion basically says that there is a clear-cut reason why this lawsuit should be dismissed right off the bat. For example, let’s assume John Doe sued his employer for age discrimination alleging that he was fired at the age of 39 and replaced by someone who is 19. His employer might move to dismiss the lawsuit because someone who is 39 is not protected by the federal age discrimination laws (you must be at least 40).
Of course, there are countless other reasons a defendant might file a motion to dismiss. If a motion to dismiss is filed, then the plaintiff must file a response. The court will then rule on the motion. If the motion is granted, then the lawsuit is over. If the motion is denied, then the lawsuit continues.
T he Anatomy of Lawsuit
Medical Liability Mutual Insurance Company (MLMIC) stands
behind its management philosophy to aggressively defend and resist
payment for groundless claims and to expeditiously compensate
claimants for meritorious claims. Achieving these goals requires
dedication and teamwork.
We urge you to read this brief publication. The more you know
about our procedures and your responsibilities, the better prepared
you will be if you are involved in a claim.
I. INTRODUCTION
Although the formal sequence of events presented begins with the service
of legal papers upon the health care professional, keep in mind that you
can never be too cautious when dealing in the world of professional liability
litigation. If you suspect a claim or a suit may be forthcoming, it is important
to advise MLMIC’s Claims Department immediately.
Don’t Wait for Legal Papers to be Served
Warning signs of a possible action may include:
● any communication from an attorney representing a patient.
● any threat of a claim or suit by a patient or family member.
● any untoward result that was not anticipated or that was, or was not,
an inherent risk of the treatment given or surgery performed.
Reacting to these warning signs immediately gives us a chance to start
compiling your potential defense while the events are still fresh in the
minds of the witnesses. Further, we may be able to dispose of a legitimate
claim more swiftly and economically before lawyers become involved.
Non-Party Witness
Under certain circumstances, you may receive a subpoena to
appear as a non-party witness in a pending action. If this occurs,
it is imperative to notify MLMIC immediately so legal counsel
may be assigned to protect your interest.
Reporting Events
In the course of your practice, an untoward incident may occur
which you feel could lead to a claim or suit. These incidents, also
called “events,” should be reported to MLMIC’s Claims Department
immediately so that basic data can be gathered soon after the
incident occurs. These events will not be reported to any government
agency, nor will they affect your insurance in any way.
II. YOU HAVE BEEN SERVED WITH LEGAL PAPERS.
TIME IS OF THE ESSENCE. BE SURE TO:
● Note the date and method of service. The three most frequently
used methods of service include 1) personal delivery directly
to you; 2) delivery to another at your place of business,
dwelling, or abode, followed by a mailing to either your place
of business or residence; or 3) delivery by first class mail. If you
receive legal papers by mail, do not complete and return any
document without first discussing this with MLMIC.
● Call the MLMIC Regional Claims Department immediately at
(212) 576-9850 [New York City, Westchester, Bronx, and
Richmond Counties], (516) 794-7200 [Kings, Queens, Nassau,
and Suffolk Counties], (315) 428-1188 [upstate New York], or
(518) 786-2700 [Albany area].
Malpractice is professional negligence and medical malpractice is the
negligence of a doctor. Negligence is the failure to use reasonable care
under the circumstances; doing something that a reasonably prudent
doctor would not do under the circumstances, or failing to do something
that a reasonably prudent doctor would do under the circumstances.
It is a deviation or departure from accepted practice.
New York State Pattern Jury Instructions (Civil).
(see Appendix for complete text)
● The teamwork begins immediately.
You will be assigned a Claims Department
representative who will handle your file in
the office. This individual will proffer some
basic advice and will initiate the first steps in
developing your defense, including assigning
defense counsel to represent you. Your defense
counsel will contact you immediately to
discuss your defense and obtain information
necessary for an appropriate response to the
legal papers your received.
● Keep in mind that once you have been served
with legal papers, MLMIC generally has only
20 days in which to respond—either to
appear on your behalf or to have an answer
to the complaint drafted and sent (essentially,
the “answer” denies any general allegations
made). At the same time, your appointed
attorney will serve a notice of a demand for a
Bill of Particulars in which the plaintiff must
specify the nature of the charges against you.
● If you fail to notify the company within the
allotted time, an automatic judgment may be
levied against you by default. Therefore, your
quick response and cooperation are crucial
components for a successful defense.
● If you receive any additional legal papers
dealing with this case, be sure to inform
MLMIC’s Claims Department.
Do Not:
● alter your records under any circumstances.
MLMIC can defend, with difficulty, an
incomplete record, but it can not defend
a fraudulent one.
● ignore or discard the summons or complaint.
That will only exacerbate the problems and
hinder the defense efforts being made on
your behalf.
● take matters into your own hands.
Calling the plaintiff or his/her attorney to
challenge or cajole will only harm your case.
● speak to anyone about your case.
Speak only with your MLMIC representative
and assigned defense counsel.
III. BUILDING YOUR DEFENSE:
THE TEAM GROWS
Giving MLMIC representatives your full cooperation
is not only the prudent course to follow, it is
also mandatory. Condition 2b of your insurance
policy reads, in part, as follows:
“Each Insured must cooperate with us in the
preparation of the defense, in investigating and
in settling Claims. For example, when we ask an
Insured to, they must attend hearings, depositions,
trials or arbitration proceedings. Each Insured
must assist us in obtaining the attendance of
witnesses and in the conduct of Suits.”
Meeting With Your Field Representative
The information provided to your Claims
Representative is then passed on to the Field
Representative in your area. This individual will
contact you and arrange for a personal interview,
asking that in the interim you secure a copy of
the plaintiff ’s records, including X-rays, and any
hospital charts covering his/her treatment.
The purpose of this initial meeting is to obtain
from you a detailed account of what transpired
during your treatment of the plaintiff. The
representative’s questions will be probing and
exhaustive…possibly even irritating in their detail.
But remember, this Field Representative is another
key member of your defense team.
Once the interview is completed, the Field
Representative will send copies of your records
and hospital charts to MLMIC’s Claims
Department, along with a summary of your
conversation. These new materials are then
incorporated into your case file and given to the
company’s expert reviewers for their comments.
IV. PEER REVIEW
After examining your file, MLMIC’s consulting
experts express their professional opinions
regarding your case. While their initial analysis
may not determine how MLMIC will deal with
the case, it will provide a better picture of the
extent of liability. Their advice and review,
together with the investigation to date, will then
be passed on to your defense counsel.
V. INITIAL MEETING WITH COUNSEL
Defense counsel will review all of the materials
gathered thus far and will then meet with you.
The purpose of this meeting is to discuss potential
complications in your case, what you will need to
do in your own defense, and what to expect as the
case goes along.
MLMIC has formulated certain guidelines which
defense attorneys must follow. Strict adherence to
these guidelines is required. MLMIC also requires,
among other things, that the lawyer:
● meet with you well in advance of the times
you must give testimony, either prior to or
at trial.
● do adequate research and preparation for
your defense prior to your Examination
Before Trial (EBT).
● maintain a professional and helpful attitude
toward your particular case.
● be available to keep you updated or answer
any questions you might have about your
case’s continuing status.
If those guidelines are not respected or you are
displeased with the treatment being afforded you
by counsel, MLMIC fully expects you will call it
to our attention.
Just like the Field Representative and your Claims
Representative, your counsel is also working for you
and is a vital member of your overall defense team.
Cooperation with your attorney is
imperative for a well-defined defense.
VI. THE EXAMINATION BEFORE TRIAL (EBT)
The Examination Before Trial is a crucial episode during the
development of your case because the involved parties are under
oath. This means that whatever you say will become part of the
permanent record. If you state something as fact at the EBT and
then contradict it in court, the record from the EBT can be
produced and your credibility impeached. Therefore, you must
be well prepared for this event.
In preparation for the EBT, you should:
● review the plaintiff ’s records and charts thoroughly.
● review all appropriate details because you will be asked highly
technical questions about medical facts which, on a day-to-day
basis, you probably haven’t thought about for a while.
Listen very carefully to the advice your attorney gives you about
preparing for your EBT and how to respond to questions.
At the conclusion of the EBT, your defense counsel will advise us
about how, in his opinion, the examination went: what kind of an
impression you made as a witness (very important), what kind of
an impression the plaintiff made as a witness, and potential strengths
and weaknesses in your case.
VII. SETTLE OR FIGHT?
The Decision to Settle
If, after the EBT, a comprehensive review of the case file indicates
that your case is not defensible, then MLMIC will try to settle out
of court . . . but only after this has been discussed with you and your
written consent to settle obtained.*
It has always been MLMIC’s policy and strongly held conviction that
cases of genuine malpractice should be settled as rapidly as possible for
the sake of the patient. Seeing a case through trial can take years,
and we believe that an individual injured by an act of negligence
should receive just compensation swiftly so a return to as normal
a life-style as possible can be facilitated.
Unfortunately, despite this belief, it is sometimes difficult to settle
cases prior to trial because reports of large awards have so heightened
anticipation, that claimants and their attorneys are invariably
looking for unrealistic compensation.
The Decision to Fight
Should MLMIC’s judgment—based on the data collected thus
far—be to take your case to trial, a series of activities are initiated.
● Bill of Particulars: Already a part of your file, the bill of
particulars lists the damages the patient allegedly suffered, such
as impairment of a limb, as well as the plaintiff ’s theory regarding
alleged departures in care. Members of your claims team
verify these allegations to determine whether or not the patient
has really suffered as much as he/she says. Issues defined in the
Bill of Particulars will have figured prominently in your EBT.
● Physical Exam: An impartial physician or dentist is instructed
to examine the plaintiff. Equipped with a copy of the Bill of
Particulars, this doctor’s task is to evaluate the patient’s claims
of injury.
● Investigations: Where the independent doctor reports,
or investigation demonstrates, discrepancies between
the allegations and reality, MLMIC may hire independent
investigators to research and document the plaintiff ’s activities.
* MLMIC need not obtain this written agreement from those policyholders who
have waived their right to consent to settle via endorsement.
● Questions and Answers: You will be contacted
by your Field Representative to assist in
resolving the following:
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