The Anatomy of a Lawsuit

You are a family medicine doctor covering the emergency department. A 49-year-old male arrives at the emergency department with chest pain. He has no risk factors for coronary artery disease. The nurse relays to you that the vital signs are normal. Blood pressure is 140/85 mm Hg, and the heart rate is regular at a rate of 80 bpm. You interview the patient, identifying he has 3/10 mid-sternal chest pain waxing and waning for the last 24 hours. You identify no precipitating or alleviating factors to explain the chest pain. The patient appears tense. He denies any significant emotional stress. The cardiopulmonary physical examination is normal. The electrocardiogram (ECG) is normal, as is the chest x-ray. The blood tests, including a troponin level, are normal. The patient states the pain has resolved and he believes it is anxiety related. He wants to be discharged.

You decide the patient is low risk based upon symptoms, physical examination, ECG, and blood tests. You discharge the patient from the emergency department and recommend follow-up with his family physician. The next day you learn the patient died of an apparent heart attack.

The Lawsuit Is Filed: Now What?

The Lawsuit: The Beginning

Claims of negligence are frequently resolved by the insurance carrier without a lawsuit ever being filed. These claims are typically clear-cut examples where the standard of care was breached. When it is unclear whether there was a violation of the standard of care, the litigation process often moves forward. The query surfaced by the allegation of negligence often involves determining who bears responsibility for the alleged negligence. Alternatively, the claimant and insurance companies, and/or physicians cannot agree on the valuation of the claim.

An action against a physician does not begin until the complaint is filed with the court and officially served upon the physician.

When a patient, or the family of a deceased patient, has determined that the physician’s malpractice carrier will not resolve a claim for medical malpractice, the patient or the administrator/executer of the estate will initiate formal legal action by filing a complaint. The patient or executor, known as the plaintiff, will have an attorney file in a state court a complaint describing the factual and legal basis for the lawsuit. There are specific time limitations by which a lawsuit must be filed. A physician should never consider a potential claim “dead” until advised by the insurer, or his or her attorney, that the applicable time to file a lawsuit has expired.

An action against a physician does not begin until the complaint is filed with the court and officially served upon the physician. The proper means of service of a complaint is governed by each state’s law and includes being served personally, or by registered or certified mail. The timing and manner of service is important, as errors in the process of serving the complaint can result in the lawsuit being dismissed (see below). When a physician receives a complaint alleging malpractice, or a letter, or other notice of an asserted claim, the insurance carrier and physician’s attorney should be notified immediately, and copies of the lawsuit papers should be forwarded to each. It is imperative for the physician’s attorney to know the exact circumstances under which the complaint was received, to whom it was delivered, who signed for receipt of the complaint, and the exact date and time of such receipt.

A medical malpractice complaint is difficult reading for the defendant physician, as the allegations frequently include punitive language that is often insulting. The named defendant must maintain emotional composure when reviewing the allegations of the complaint point by point and preparing to discuss them with counsel. Remember that the complaint purposely presents only one side of the story—it’s biased. The complaint often includes language such as willfully, wantonly, and recklessly sprinkled throughout. The defendant will have an opportunity to respond in a factual matter, attempting to accurately depict the circumstances surrounding the allegations.

Upon notice of the malpractice claim, it is prudent for the defendant physician to transfer the care of the plaintiff to the care of another physician with similar training and expertise. After transfer to another physician, the defendant physician should have no contact or communication with the plaintiff, or legal representative for the plaintiff, except to provide copies of medical records to the patient or patient’s designated representative as formally requested. All copies of records should be sent by certified mail. The physician should prevent any loss of or tampering with medical records.

Coverage Issues

When the malpractice insurer decides not to resolve the claim, control of the case will shift from the insurance company to the attorney retained to serve as independent counsel for the defendant physician. Defense counsel will be the physician’s primary source for pertinent law and the progress of the case. The issues regarding the claim of negligence are directed to the defense counsel, and the attorney has a duty to keep the physician and insurance carrier informed about the progress of the case. The physician must be certain his or her counsel has no conflict of interest.

A professional liability insurance policy requires the company to provide a defense for the insured physician on all claims for which there may be potential coverage. If there is uncertainty surrounding a potential coverage issue, the carrier will issue a “reservation of rights” letter informing the physician that the company is providing defense counsel for the insured, but is reserving its rights to deny any coverage for any adverse settlements should the facts identified in the litigation support a denial. Among other reasons, the insurance company may deny coverage because some, or all, of the treatment occurred outside the coverage period, or the physician was treating outside his or her specialty, did not give proper notice when the claim arose, or had defaulted on payment and premiums. A physician should retain separate counsel to review any reservation of rights by the insurer, to provide advice about rights and obligations under the policy, and, if necessary, to litigate against the insurance company in the event of wrongful dismissal of coverage.

Meeting With Defense Counsel

Physician’s Overview of the Case

Defense counsel will meet with the physician in person to find out about the particular facts underlying the claim, provide an overview of legal standards and issues that will be controlling, and discuss upcoming events in the case. The physician should arrange for the attorney to have all pertinent medical records, bills, devices, and instruments used that are pertinent to the claim, and a listing of all medical personal involved in the evaluation and treatment of the patient.

The physician must be prepared to describe in detail the diagnosis and treatment of the plaintiff, identify what personnel handled which aspects of treatment, and explain all notes and abbreviations in the medical records. The physician must familiarize the attorney with the normal causes, symptoms, and progression of the disease at issue, and how the diagnosed disease in question is typically treated. The attorney must be well-educated about the condition and treatments in question.

The physician must be completely candid with the attorney. If defense counsel is assuming false information to be true, he or she is primed for exposure that will cost credibility with the judge or jury, and will certainly decrease the likelihood of winning the case, or settling it favorably. True facts are critical for the defense counsel to evaluate the case and construct a defense. The attorney-client privilege, whereby the attorney and attorney’s staff are ethically bound not to reveal any confidential communications, exists to specifically promote such full disclosure and will be violated only in situations such as to prevent the commission of fraud, or a future crime.

Identification of Other Parties

The physician’s initial interview with counsel will allow identification of parties named in the lawsuit, and their roles in diagnosis and treatment. Plaintiff attorneys look for as many potential sources of recovery as possible, thereby naming all involved medical personnel and the clinic, or hospital, where medical care was rendered. The defense attorney needs to identify healthcare professionals, or institutions involved in the patient’s care, that already settled claims against them.

The individual institutions need to be nominally named in the lawsuit for purposes of allocations of fault. The physician named in the lawsuit may want to file a cross claim against other parties, or add new unnamed parties. In this scenario, the physician would allege that the other defendant(s) are solely responsible for the plaintiff’s injury, or if the physician is found liable to the plaintiff, that the other defendants or cross claimants should be obligated to reimburse him or her for the damages he or she has to pay.

Evaluation of Procedural Pretrial Defenses

One of the procedural defenses to be considered is invalid or improper service of process. That is why it is imperative for the physician’s attorney to know the exact circumstances under which the complaint was received, to whom it was delivered, who signed for receipt of the complaint, and the exact date and time of such receipt. If the method or timing of service were improper, the defense attorney may file a motion to dismiss the suit. This decision depends on the gravity of the improper services and the demeanor of the judge who decides the motion. The remedy for an improperly served complaint may be granting of additional time to allow proper service. Generally, unless the improper service is grossly abnormal, the defense counsel will move to the merits of the case as a possible reason for dismissal.

A motion to dismiss may be filed if the claim was filed beyond the statute of limitations, or if the plaintiff failed to comply with procedural or other statutory requirements. The statute of limitations on a medical malpractice action varies from state to state, ranging from two to four years. The statute of limitations sets the time limit for filing suit and the clock does not begin until the alleged harm/injury has manifested itself.

The statute of limitations may be temporarily longer for claims involving minors, foreign bodies left in a patient’s body, or claims where the harm was not reasonably discoverable for some period of time based upon the facts. Some states operate by a statue of repose. This sets out the maximum amount of time within which a lawsuit can be filed; the time when harm/ injury manifests is not relevant.

Some states have statutes that require a plaintiff to certify that a competent medical professional in the same area of medical/surgical expertise has reviewed the claim and would be willing to testify as to the breach of the standard of care before a lawsuit can be filed.

Procedural defenses may be litigated as pretrial motions to dismiss. A motion to dismiss asks the court to find that even if everything in the complaint is true, the defendant is not liable, and should not be required to defend the lawsuit as a matter of law. The defendant physician may have to sign an affidavit, or sworn declaration, describing the circumstances supporting a motion to dismiss. Each side has an opportunity to present its legal argument on such a motion, as legal briefs or oral arguments at a hearing, and the judge will issue an order with a ruling.

Evaluation of the Merits of the Case and Substantive Legal Defenses

Substantive legal issues in the malpractice arena will allege issues such as negligence, improper informed consent, or an intentional tort, such as battery (operating on wrong appendage/organ). The elements of medical negligence are simple. The plaintiff must establish that the physician breached the standard of care in his or her evaluation and/or treatment, and that such breach was the proximate cause of the patient’s alleged injury.

The plaintiff will have to present testimony by expert witnesses that the standard of care was breached.

The plaintiff tries to establish that the physician did not act as a reasonable physician with similar training would have under similar circumstances, and that the physician’s error or omission made the patient’s condition worse, slowed recovery, or caused injury or death.

The plaintiff will have to present testimony by expert witnesses that the standard of care was breached. The expert practicing in the relevant field of expertise will testify about the optimal evaluation and/or treatment of the particular condition, and identify any deviation from the standard of care. Expert testimony must also establish that the alleged negligence proximately caused the injury or illness, pain, and suffering allegedly endured by the plaintiff.

Assuming the case does not settle, the defendant physician will have the opportunity to present both factual and expert testimony, including experts retained to testify that the defendant physician followed the pertinent standard of care under the circumstances. The issues of breach of the standard of care and proximate cause will often boil down to the dueling of the experts, and the outcomes will depend on which experts present the most knowledgeable, objective, and credible testimony.

The two most straightforward and frequently asserted defenses are that the defendant physician did not breach the standard of care and/or that any error that the defendant physician may have made was not the proximate cause of patient’s injury or condition progressing, or failing to improve. The burden lies with the plaintiff to establish these elements. The defense must present evidence disproving either or both of these elements. Other defenses can shield the defendant physician even when all elements of negligence are proven. Additional potential defenses are independent intervening negligence and contributing negligence, which requires proving that despite the defendant physician’s negligence, a co-incident or subsequent negligent act or omission was the real cause of the plaintiff’s continued illness, injury, or death.

The patient’s negligence may be a partial or complete defense to liability.

Contributory and comparative negligence are defenses to liability, when it can be shown that the plaintiff failed to act with the care of a reasonable person, and in so doing caused or contributed to his or her death or injury. The patient’s negligence may be a partial or complete defense to liability. Additionally, every state has enacted some form of a Good Samaritan law, which shields a medical professional from liability for negligence. In Florida, a statue codifies a form of charitable immunity that state healthcare providers who offer free medical care to indigents are completely immune from a lawsuit for negligence.

Evaluation of the Plaintiff’s Claim and of the Defendant Exposure

Medical malpractice plaintiffs are permitted to seek reimbursement for economic damages, non-economic damages, and punitive damages. Economic damages include lost earnings and expenses for medical treatment incident to and necessitated by the alleged act of negligence. Noneconomic damages refer to pain and suffering. Punitive damages are additional sums of money awarded to deter intentional, malicious, or reckless behavior. Past economic damages typically include the dollar amount spent for alleged negligent care, any remedial care, and lost wages from work. In cases where the degree and cost of future medical care or future lost earnings potential are involved, each side will rely on expert testimony to establish what type and level of future care the plaintiff will need, and the potential for future gainful employment. This may require expert testimony from an economist to assist the jury in determining the award. Noneconomic and punitive damages are much more of a wild card than economic damages.

Pretrial Discovery Procedures

Once the complaint has been filed and answered, any procedural pretrial motions resolved, and a litigation strategy mapped out, the pretrial discovery process begins. The time interval from the time of alleged negligence to commencement of a malpractice claim may be several years. The discovery process will usually consume the largest portion of time once the lawsuit is filed. It is in the discovery process that the lawsuit is frequently won or lost. The attorneys typically control the discovery process.

The court is involved to the extent necessary to set timetables for completion of discovery, or to resolve any disputes among the parties about the propriety of requests or the timeliness and completeness of responses.

The trial judge has the ultimate determination of what evidence may be considered by the jury at the trial. The rules of civil procedure govern the discovery process and provide two methods to identify what evidence or expert opinions the adversaries plan to offer at trial: written requests for information and live testimony of witness at deposition.

Written Discovery

Written discovery requests include requests for admission, requests for documents, and interrogatories. Requests for admission are statements of facts that the recipient is asked to admit or deny under oath. If the recipient of the request fails to respond, the statement is automatically admitted as true. The recipient is typically instructed to provide a full explanation of the factual basis for his or her denial of any particular request.

Requests for documents are the means by which the plaintiff obtains copies of the physician’s notes, records, bills, test results, and imaging results. Conversely, the defense attorney may serve similar requests upon the plaintiff, asking for all of the records of treatment by other physicians before, during, and after the defendant physician’s treatment. Additional requests can include opinion letters, reports prepared by plaintiff’s expert witnesses, and evidence of payment of plaintiff’s damages from other sources.

Interrogatories are written questions submitted to the parties to the lawsuit asking for general information regarding the case, including explanations of the defendant’s view of the facts, lists of people believed to have knowledge of the facts of the case, and information regarding previous claims filed against the defendant and the previous claims filed by the plaintiff. The responding party must obtain interrogatories under oath and they may be used at trial as if live testimony.

The defense attorney will review all incoming written discovery requests and identify response deadlines. The defense attorney and defendant physician should draft the responses together. The attorney identifies any requests that will not lead to admissible evidence and will object in writing to such requests. If opposing counsel disagrees, he or she may file a motion asking the presiding judge to rule on whether information sought is discoverable. The defendant physician will review the responses of the plaintiff to interrogatories to evaluate accuracy and credibility and to identify any medical or factual mistakes and information omitted or unaccounted for. The defendant physician must review the reports of plaintiff experts to facilitate the defendant attorney’s understanding as he or she prepares to depose the plaintiff’s expert witnesses.

Depositions

A deposition is a witness’s recorded testimony, given under oath, when questioned by the attorneys for the parties in the case. The deposition allows the attorney to find out what facts and opinions the witness will testify to at trial. The plaintiff attorney takes the deposition of the defendant physician, the physician’s expert witnesses, and any fact witnesses the physician has identified. The defense attorney will take the depositions for the plaintiff and plaintiff witnesses. If the witness is one of the parties to the lawsuit, his or her attorney will be present to object to any allegedly improper questions, learn how his or her own witness presents, and ask follow-up questions to clarify the witness’s answers or any misimpressions created on the record. The attorney uses the deposition to lock down the witness’s testimony to keep it from changing, to identify and explore any weaknesses, and to assess the witness’s overall credibility and jury appeal. The strength or weakness of a witness or expert’s deposition testimony is a crucial factor in a party’s decision to settle the case or press forward to trial.

A witness physician must thoroughly prepare for deposition by having an in-depth knowledge of the patient’s medical history and treatment. The plaintiff’s attorney will use lack of in-depth knowledge to imply carelessness, callousness, indifference, and ignorance of the defendant physician. The defendant physician counsel will help the witness prepare for the deposition by telling him or her what to expect and by identifying possible questions the opposing counsel will ask.

Dispositive Motions

Upon completion of discovery, either or both parties may file a motion for summary judgment, asking the court to rule in favor as a matter of law, even if the opposition’s vision of the facts is considered to be true for purposes of the motion. The party moving for summary judgment must prove there are no genuine issues of material fact and therefore no need to proceed to trial. The moving party will file discovery depositions, transcripts, and legal briefs outlining his or her argument. Once the moving party has met its burden, the nonmoving party must file its own brief demonstrating a genuine issue for trial.

When the court considers summary judgment, it must view the undisputed facts and the inferences drawn from those facts in a light most favorable to the party opposing the motion for summary judgment. It is rarely granted in medical negligence cases because of the many factual issues and conflicting expert opinions.

Alternative Dispute Resolution/Mediation

Increasingly, courts encourage resolving disputes by agreement rather than trial. The judge may conduct a settlement conference or appoint a neutral third party to be a mediator or arbitrator of the dispute. The most common form of dispute resolution in medical malpractice cases is mediation. At the mediation, all parties to the lawsuit, attorneys, and representatives from insurance companies meet in person with a neutral third-party mediator appointed by the court, or agreed upon by the disputing parties. The mediator does not decide the case, but attempts to get the parties to agree to settle on mutually agreeable terms. An excellent mediator will bring the parties together for an open, honest discussion about the merits of the case. The physician’s demeanor will communicate to the plaintiff whether he or she is genuinely concerned for the plaintiff’s well-being. What the physician says and how it is communicated will greatly affect whether a favorable agreement can be reached.

The mediation session offers each party an opportunity to speak with impunity. The statements made in the course of the mediation are privileged and may not be used by either party if the case proceeds to trial. It is an opportunity for the defendant’s physician to express that he or she is sincerely sorry about the outcome.

The mediation will conclude when an agreement is reached or the communications come to an impasse. In a typical settlement agreement the parties will agree that the physician’s settlement of the claim does not constitute an admission of liability, and the terms of the agreement are kept confidential.

A physician should go into mediation with an open mind and willingness to explore all avenues of a peaceful resolution.

Trial

The trial begins with selection of a jury. A large pool of potential jurors will be questioned together and individually by the attorneys for each side about the potential juror’s background, work experience, jury experience, and prejudices that may impair their ability to render a fair decision. Once the final composition of the jury is determined, the jurors will be sworn in and presentation of the case will begin.

The burden is on the plaintiff to present evidence and persuade the jury.

In a medical liability case, the plaintiff carries the burden of proof, which in a civil trial requires establishing the elements of the case by a preponderance of the evidence. Thus, the burden is on the plaintiff to present evidence and persuade the jury. The defendant bears the burden of proof in affirmative defenses, such as whether the plaintiffs acted to cause or contribute to the injury.

Plaintiff counsel will call the plaintiff’s witnesses and direct questions to elicit their direct testimony. Defense counsel will cross-examine each witness, attempting to undermine credibility, demonstrate bias, or point out facts the witness did not acknowledge in testimony.

Once the plaintiff has finished presenting witnesses and evidence, the judge will entertain any motions by the defense for a direct verdict. This motion asks the judge to rule that the plaintiff has not provided sufficient evidence to allow the case to go to jury. Again, it is a rare circumstance that this motion is granted.

Then the defense attorney will begin to present his or her evidence, including testimony of the defendant physician and supporting experts. The plaintiff’s attorney will have an opportunity for cross-examination of the defendant physician and supportive experts. The defendant physician must remain composed when the plaintiff attorney attempts to discredit the physician during cross-examination. The attorneys will object to the admission of certain testimony or pieces of evidence as appropriate, and the judge will sustain or overrule this objection on the spot. At the conclusion of the defendant’s presentation of evidence, the defendant may then again request the judge to decide the case based upon the law and not submit to the jury. If the case moves forward, the attorneys conduct a conference during which they discuss and argue the elements of the instructions to the jurors. Then each attorney presents a closing argument to the jury. The judge will instruct the jury as to applicable law to the case, and how they are to deliberate and arrive at a verdict. Then the jury retires to deliberate. The foreman will announce verdict or impasse (hung jury). If a hung jury, the case may need to be retried.

Post-Trial Motions and Appeals

Following the jury trial the losing side may move that the judge enter judgment notwithstanding the verdict. The threshold for this motion to succeed is extremely high, as the party so moving must establish no reasonable juror could have found in favor of the moving party based upon the evidence in the record. The losing side has a statutorily defined time period in which to file notice of its intention to appeal the verdict. The parties may settle before appeal.

Excerpted from Physician—Time to Invest in Yourself: Work-Life Balance, the Needs of the Patient, and Medical-Legal Risk Management, by Timothy E. Paterick, MD, JD, MBA, and Elizabeth Ngo, MD, American Association for Physician Leadership®, 2016. Available at www.physicianleaders.org.