Having
a good basic understanding of the litigation process helps doctors reduce
the anxiety and uncertainty that accompanies the traumatic experience
of being named as a defendant in a lawsuit. Also knowing what to anticipate
helps the physician assist their attorney in preparing a strong defense
on their behalf. The phases of litigation are generally as follows:
Notice:
Some states require that the patient or a legal representative notify
the physician that a claim for malpractice is forthcoming. This notice
can take the form of either a letter from an attorney or a standard
notice form promulgated by the state.
A document that is served upon
you that formally initiates a lawsuit. You should contact PRMS immediately
upon being served with a Summons and Complaint. The Complaint lists
the plaintiff’s allegations of malpractice and a formal answer
must be filed by an attorney on your behalf within a specified period
of time. Failure to file an answer may result in a default judgment
against you. Never attempt to answer the complaint on your own or contact
the plaintiff, or the plaintiff’s attorney, directly. An attorney
will be retained to assist you from this point forward.
A pre-trial process in which the plaintiff and
the defendant obtain facts and information from each other and conduct
an investigation in order to fully ascertain the facts and to further
develop the legal and medical theories involved in the case. One means
of obtaining this information is by serving interrogatories, which are
formal written questions answered under oath, on each party to the action.
Another discovery device is a deposition, which is a formal question
and answer session in which one party to the lawsuit asks oral questions
of the other party or parties or witnesses. A deposition is conducted
under oath, usually in one of the lawyer’s offices, with a court
reporter present who is recording the testimony.
Once all discovery is completed, the matter then
proceeds to trial. The trial process involves the impaneling or selection
of a jury, opening statements, the introduction of evidence through
testimony of witnesses on both direct and cross examination, closing
statements, jury instruction and deliberation, and the rendering of
a verdict.
