THE ANATOMY OF A LAWSUIT

THE ANATOMY OF A 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. 1

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) 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]. 2

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 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 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. 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, 3

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. 4

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. 5

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. 6

Questions and Answers: You will be contacted by your Field Representative to assist in resolving the following: Problems or questions that have arisen from in-house review or by defense counsel in its analysis of the plaintiff s allegations; Identification of an expert in your specialty who could review your case, independent of MLMIC s consulting doctors, and; Unfortunately, that is not usually true. There may be long periods of time when you don t hear anything from anyone, but that doesn t mean things aren t being done. You should feel free, at any time, to call the Claims Department or your defense counsel to obtain a status update on your case or to obtain answers to any questions you might have. IX. TRIAL OF THE ACTION Identification of an expert who would be willing to testify on your behalf at the trial. VIII. TIME After the EBTs and the physical examination of the plaintiff, nothing further will happen unless and until the plaintiff notices it for trial (places the case on the trial calendar). This period of time may vary widely, from several months to several years, depending upon the county in which the action is pending. This may appear to be a time of quietude. Some defendants think that, because they haven t heard anything for a while, the case has been dropped. When you step into the courtroom, it may seem like you have entered another world. Taking part in a trial is never easy, particularly when the course of treatment you have recommended for a patient and your professional judgment are being questioned. You must be prepared. Pre-Trial Preparation Do not assume you won t have to testify until the trial is well underway. In fact, it is a common plaintiff s tactic to call you, or one of the other defendants, as their first witness. Therefore, just as in preparation for the EBT, your ability to respond intelligently to questions asked of you is vital to your defense. Once again you should review the professional literature pertaining to the issue(s) in question, along with any aspects of this brochure that might stimulate debate. Additionally, you should go over the patient s records and hospital charts very carefully, as well as every bit of testimony that you gave at the EBT. As we mentioned earlier, if your testimony at trial deviates from that provided at the EBT, your credibility can be impeached. 7

Throughout this pre-trial period, you will be in close contact with your defense counsel who will instruct you on court procedures, defense strategies, and the various traps the plaintiff s attorney may attempt to lay for you in cross-examination. During the Trial Your presence, from the beginning of the trial to its conclusion, is extremely important. It takes time and effort, but remember, each member of the jury will be trying to decide for themselves whether you were genuinely concerned for this patient or whether you were callous and indifferent. The way you dress, the manner in which you conduct yourself, and just the simple fact that you are there are crucial. It is important for you to demonstrate, by your presence and your demeanor, that this case means a great deal to you. In recognition of the importance of your active participation, your policy provides a level of reimbursement for attendance at trial. A Team Effort During the trial, you and your defense counsel will function as a team, one assisting the other. You must be helpful to and supportive of your attorney. Problems will probably come up that will require your professional opinion and advice to solve. The plaintiff will call an expert witness to testify against you, and your defense counsel will consult with you to review some of the issues that have been made in the course of this testimony. Your counsel will be alerting you to tactics of intimidation that will inevitably be used on you by the plaintiff s attorney. Listen to his/her advice. You are a scientist and by nature want to explain, to clarify. The plaintiff s attorney may ask you convoluted questions and try to restrict you to answering yes or no. You will be frustrated. However, in the course of the trial, with questioning by your own counsel, you will get the opportunity to tell your story. The trial may be long or short; however, it will never be pleasant. It is not a comfortable experience, having a jury of lay people deciding whether you did or did not exercise proper professional judgment in your treatment of a patient. But with your complete cooperation, your MLMIC defense team will do everything in its power to see you safely through the gauntlet of litigation. 8

GLOSSARY Bill of Particulars: An amplification of a pleading which supplies more information and detail, affording the adverse party a more specific picture of the claim or defense. Counterclaim: A claim the defendant interposes against the plaintiff. It is contained in the answer, following the denials and defenses. The defendant may use as a counterclaim any claim he has against the plaintiff, whether related or not to the plaintiff s action. Defendant: The person or entity against whom a lawsuit is brought. Discovery: Generally, the stage of a lawsuit commencing with service of summons and complaint, and ceasing (unless otherwise ordered) with the filing of a Note of Issue, during which full disclosure of all evidence material and necessary in the prosecution or defense of an action is produced and exchanged by the parties or as ordered by the Court. Examination Before Trial (EBT) or Deposition: A method of obtaining disclosure of information which is material and necessary to an underlying lawsuit by way of sworn oral testimony. Expert Witness: A physician or dentist qualified by virtue of his or her skill, knowledge, education, experience, and training who can testify as to his/her opinion of the degree of care rendered and the cause of the injury claimed. The sufficiency of the witness qualifications to testify in a malpractice action, as well as the scope of the testimony, rests in the discretion of the trial court. Plaintiff: The person initiating a lawsuit. Pleadings: The documents by which both plaintiff(s) and defendant(s) give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. 9

Service of Process: The procedural methods by which summons, complaints, and subpoenas are delivered. The purpose of the procedural methods is to assure that the parties have proper notice of pending actions and defenses. Once the procedural methods are satisfied, the court has jurisdiction to bind the parties to its determinations. Subpoena: Judicial process whereby a witness is subjected to the jurisdiction of the court and required to give relevant information under penalty (which is the definition of subpoena ) of contempt for disobedience. Summons: A document issued by the plaintiff s attorney, which when properly delivered, commences an action. NEW YORK STATE COURTS: Supreme Court: The Supreme Court is a misnomer. This court is not supreme; in fact, it is not one, but two rungs below the State s court of last resort...the Court of Appeals. Appellate Division: This Court hears appeals from the Supreme Court and from County Courts, the Family Court, the Surrogates Court, the Court of Claims, and the Appellate Terms of the Supreme Court. The Appellate Division reviews both law and facts, the latter including exercises of discretion made at the trial level. Court of Appeals: The highest court in the State of New York. This Court, except in two specific situations, only reviews questions of law. The information contained within this brochure is provided to educate the reader. It is intended for general information purposes only and is not, nor is it intended to be, legal advice. 10

Negligence of Action: Malpractice Physician (the Court s instruction to a jury): 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. A doctor who renders medical service to a patient is obligated to have that reasonable degree of knowledge and ability which is expected of (doctors, surgeons, specialists) who (perform, provide) that (operation, treatment, medical service) in the medical community in which the doctor practices. The law recognizes that there are differences in the abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice medicine a doctor is not required to have the extraordinary knowledge and ability that belongs to a few doctors of exceptional ability. However every doctor is required to keep reasonably informed of new developments in (his, her) field and to practice (medicine, surgery) in accordance with approved methods and means of treatment in general use. The standard to which the (doctor, surgeon) is held is measured by the degree of knowledge and ability of the average doctor [if specialist, state type] in good standing in the medical community in which the doctor practices. In performing a medical service, the doctor is obligated to use (his, her) best judgment and to use reasonable care. By undertaking to perform a medical service, a doctor does not guarantee a good result. The fact that there was a bad result to the patient, by itself, does not make the doctor liable. The (physician, surgeon) is liable only if (he, she) was negligent. Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence. A doctor is not liable for an error in judgment if (he, she) does what (he, she) decides is best after careful examination if it is a judgment which a reasonably prudent doctor could have made under the circumstances. If the doctor is negligent, that is, lacks the skill or knowledge required of (him, her) in providing a medical service or fails to use reasonable care and judgment in providing that service, and such lack of skill or care or knowledge or the failure to use reasonable care or judgment is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused. [Where appropriate, add:] A doctor s responsibility is the same regardless of whether (he, she) was paid. (New York State Pattern Jury Instructions. Rochester: Lawyers Cooperative Publications.) 11

Notes

New York City Long Island Syracuse Albany Area (212) 576-9800 (516) 794-7200 (315) 428-1188 (518) 786-2700 (800) 275-6564 (877) 777-3560 (800) 356-4056 (800) 635-0666 www.mlmic.com COM ANAT 1105 2005 New York, NY