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LEGALEASE
Anatomy of a Lawsuit, Part 1:
The Preliminaries
Ronald T. Burkman, MD; James H. Hughesian,
JD
This first article in a series on malpractice
litigation focuses on what to do—and what not to do—if a suit is filed
against
you.
It arrives either by certified mail or dramatically hand-carried by an
officer of the law or process server. It is the dreaded Summons and
Complaint, signaling that a patient is filing a lawsuit against you for
medical malpractice.
In this series of articles, we will dissect the “anatomy” of
a lawsuit. This is not a comfortable subject, but according to a survey
conducted by the American College of Obstetricians and Gynecologists
in 2006, 89% of respondents indicated that they had been sued at least
once
in their career, with an average of about 2.6 claims.1 About 37% of
respondents indicated there was at least one claim against them for care
provided during
their residency. These articles will familiarize you with the process
and make suggestions to help you through the process if you become a defendant
in a lawsuit.
SUMMONS AND COMPLAINT
The serving of a Summons and Complaint is the first step in a fairly
lengthy process. Essentially, these papers register the lawsuit
with the court, and list the defendants and alleged areas of inappropriate
care. In the Summons and Complaint, the plaintiff usually specifies
the defendant’s duty in the case, breach of duty, proximate
cause, and damages (Table).
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Table not available online
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Table. Major
Elements of
Negligence Requiring Proof in a Medical Malpractice Case |
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STATUTE OF LIMITATIONS
The statute of limitations for medical malpractice cases varies from state to
state. For cases involving only adults, the statute of limitations in many jurisdictions
runs from the date of the alleged injury until 3 years later. For cases involving
living minors, the statute of limitations may range from 8 to 21 years.
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FIRST STEPS
When a Summons and Complaint arrives, it is only human nature to
review the complaint, get the relevant office or hospital files, and share
your angst with your colleagues. However, there are important measures that
must be taken immediately. First, notify your liability insurance carrier.
Most summonses require a response within a set period of time; failure to
do so could result in a default judgment against you even when the facts are
in your favor. It is appropriate to secure the necessary office files in a
safe place. If you wish to review the hospital records, it is better to obtain
a copy from the medical records department rather than reviewing the actual
files. This precludes any suggestion that the records were altered after the
fact. Certainly, there should be no alterations or addenda to any of the records
at this point. Avoid discussing the case with colleagues or others with whom
you work. In theory, any statements you make could be revealed if the plaintiff
chooses to call a colleague as a “witness of fact.”
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LAWYERS
In general, medical liability insurance companies have a number of
lawyers who defend their clients. In most suits, because the insurance carrier
is at the greatest risk financially, the company will select the attorney
who they feel is appropriate for the case. The defense bar—particularly those
who work with medical liability insurance companies—usually consists of attorneys
who are highly experienced and specialized. Many such attorneys even specialize
in specific areas of medicine, such as OB/GYN. Medical liability defense attorneys
have their own professional organizations and continuing-education programs
to keep them up to date. Defense attorneys are usually reimbursed based on
the time devoted to the case.
At the initial meeting with your defense attorney, the process is outlined, general issues regarding the case are discussed, and you can tell the attorney about studies or texts that support your position. Your attorney may also request assistance in identifying other records that may bolster your case and possible expert witnesses who can render opinions on specific aspects. As your attorney describes the overall course to be followed, it is important to remember that he/she works within the legal system on a daily basis. Some of these approaches may seem foreign to those who practice medicine. However, your attorney better understands the apparent strengths and weaknesses in your case and which approaches are likely to be effective with a jury.
Prior to the initial meeting, the defense attorney will probably request that you review the records in detail and identify any issues that you feel may affect the case. It is important that you describe your thought process during the course of care—eg, why certain decisions were made, what was discussed with the patient, and what concerns you have either about your decision-making or the adequacy of documentation. Withholding information or concerns about how you managed the case due to fear of criticism will ultimately hamper the effectiveness of your defense. Furthermore, experienced expert witnesses will readily identify such problems.
On rare occasions, you may find that the ńchemistryî between you and the assigned attorney is a problem. This issue should be raised very early in the process with the claims manager of your liability insurance company. It is easier to assign a new lawyer to your case before significant preparation and evidence gathering occurs. Finally, you should recognize that the plaintiff bar in medical liability cases is also likely to comprise highly skilled and specialized lawyers who have their own organizations and educational resources. Unlike the defense bar, however, most plaintiff attorneys are compensated on a contingency basis—ie, their compensation depends on obtaining a monetary judgment against the defendant. In general, this is about 33% of the amount received from the defendant at settlement or trial.
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STRESS
Involvement in a lawsuit as a defendant can be an emotional rollercoaster.
In reviewing the clinical care of the plaintiff, one invariably identifies
things that perhaps could have been done better—eg, an additional diagnostic
test, another therapeutic approach, or better documentation. However, medicine
is primarily a human endeavor where mistakes are made, perfection is seldom
achieved, and improvement is almost always possible. Nonetheless, defendants
often experience a sense of self-doubt, guilt, or inadequacy. The legal
process itself raises many questions. Are my assets at substantial risk
if there is a large judgment against me? When my
case is reported to the national databank, will I be dropped from
health insurance company
panels? Will the licensing board conduct an investigation of my
competency? Will my patients and colleagues stop trusting me? Although most
of these consequences never come to pass, their burden can certainly affect
your physical and mental health. In addition, as discussing your case with
colleagues and friends is not in your best “legal” interest,
you may have few options for venting your anxiety. Some defendants will
experience depression, family or marital difficulties, and distrust of current
patients. It is important for you to address these concerns during your
discussions with your lawyer. Many county or state medical societies have
support groups or counselors who can assist physicians in this situation.
You should not hesitate to seek help; inappropriate anger or depression
will not help your defense.
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CONCLUSION
Bear in mind that the shock, anger, and fear you may experience
if you receive a Summons and Complaint are normal reactions. However, these
feelings may give rise to impulses and actions that are not in your best
interest. It is essential to seek legal counsel immediately and to follow
your attorney’s advice. This will minimize your chances of making
a mistake that could irrevocably harm your case.
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Ronald T. Burkman, MD, is member, Department of Obstetrics and Gynecology, Baystate Medical Center, Springfield, Mass; and professor, Department of Obstetrics and Gynecology, Tufts University School of Medicine, Boston, Mass. James
H. Hughesian, JD, is attorney at law and principal, Kitch, Drutchas, Wagner, Valitutti & Sherbrook, Detroit, Mich.
References
- The American College of Obstetricians and
Gynecologists. ACOG Clinical Review. March/April 2007;12(2).
Look for the next article in this series, which will focus on the initial discovery process, in an upcoming edition of The
Female Patient.
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