The Summons and Complaint is the set of documents that
is served on the defendant(s) to initiate a lawsuit. These documents
may also be called a "Notice" or "Petition." Until
an individual has been properly served with the Summons and Complaint,
he or she has not been "sued." There are different means by
which one can be served, depending upon the jurisdiction. In some states,
service of the Summons without the proper Complaint is proper service.
Do not assume just because you have not been personally handed a Summons
and Complaint, that you have not been properly served.
The
Summons is a court mandate that informs the defendant that a civil action
has been commenced against him or her and requires the defendant to
appear in the case and defend.
In
a malpractice lawsuit the Complaint generally outlines the patient’s
allegations against you, and may name other defendants. The Complaint
will require a formal answer that will be prepared by your defense attorney.
There are time restraints for answering a Summons or Complaint. Usually
the defendant must file an Answer in 20 or 30 days, or an extension
for filing the Answer must be requested and granted.
•
Contact your professional liability
insurance company representative as soon as you receive a Summons or
Complaint. A default judgment can be entered against you if there is
not a proper and timely response filed on your behalf by your defense
attorney.
• Do not answer the Complaint on your
own.
• Do not contact either the plaintiff
directly or his/her attorney. Be aware that any information imparted
to anyone except your defense attorney can be used against you later
and/or may form the basis of a breach of confidentiality suit.
• Confine your discussions about your
lawsuit. There is a natural inclination to want to discuss your lawsuit
with colleagues, family members and/or friends. Reviewing a course of
treatment with a colleague may result in an individual being called
as a witness in your trial, or conversely, preclude the defense from
calling that individual as a witness. Discussions with anyone other
than your attorney can be discoverable and subsequently used against
you.
• Establish a written policy for responding
to a process server who enters the office and what steps to follow if
any legal documents are found on the premises or are received by mail,
fax, etc. This policy should be reviewed with office staff during orientation
and regularly thereafter.
The
Answer is a formal written response by the defendant to the allegations
in the Complaint. The defendant serves the Answer on the plaintiff and
files it with the Court. In the Answer the defendant denies in part
or in whole the plaintiff’s allegations, asserts his or her affirmative
defenses, and states a request for relief.
• Do
not attempt to file an Answer on your own. Your defense attorney will
do this.
•
Do not contact either the plaintiff directly or his/her attorney. Be
aware that any information imparted to anyone except your defense attorney
can be used against you later and/or may form the basis of a breach
of confidentiality suit.
•
Do cooperate with your assigned defense attorney. The defense attorney
represents you, not the insurance company, and is legally and ethically
bound to represent your best interests.
Interrogatories
are written questions from one party in the lawsuit to the other party.
Interrogatories are one of the tools of discovery. Discovery is the
pretrial process by which the plaintiff and defendant obtain facts and
information about the case from each other and conduct investigation
in order to fully ascertain the facts and to further develop the legal
theories involved in the case. Answers to interrogatories are drafted
by your attorney for your signature and are based on all the information
that is known about the questions at that point in time. Your attorney
can object to improper interrogatories.
It
is important for the answers be accurate and complete. The court can
impose sanctions if a party purposely withholds or conceals information,
or gives misleading and incomplete answers. Interrogatories must be
answered and served within certain time periods, usually 30 days.
• Do
provide specific information about the treatment of the patient and
forward copies of the legal documentation and treatment records requested
by your defense attorney. Providing your professional liability insurance
company representative and defense attorney with requested documentation
and other information about the patient’s treatment will assist
in the development of your defense by allowing experienced individuals
to analyze the information and obtain expert opinions. Your insurance
policy usually has a provision that requires your cooperation in defending
a lawsuit.
•
Do be honest and candid with your defense attorney
and claims representative. Attempts to conceal information, even if
you think it is unfavorable to your case, seldom remain unexposed. Moreover,
dishonesty can make a case indefensible. Honesty and candidness allow
the your defense attorney to review the facts in their entirety and
prepare a defense.
A deposition
is a formal question and answer session in which one party to the lawsuit
asks oral questions of the other party or witnesses under oath. It enables
a party to obtain testimony for the purpose of discovering information
or to preserve the testimony for use at trial. Depositions are usually
conducted in a lawyer’s office and a stenographer or court reporter
records the answers. Your defense attorney will represent you at your
deposition. Your defense attorney will object to inappropriate lines
of questioning and to questions about issues deemed irrelevant to the
case.
• Do
prepare for your deposition testimony. It is essential to prepare and
review your testimony with your defense attorney. The plaintiff’s
attorney will be reviewing your transcribed testimony for any inconsistency
in testimony, so preparation and honesty is essential for a successful
deposition.
• Knowledge of the treatment records
is the key to a successful deposition. If you are prepared and familiar
with the records your confidence and honesty will come across in the
deposition and transcript.
• Keep answers short and to the point.
Try to answer questions with a simple "yes" or "no."
Explanations tend to give the plaintiff’s attorney more information
than needed and may prompt more questions. Of course, if an explanation
is necessary, by all means, state it.
• Think before answering a question.
If you are unsure of an answer to a question, you may respond that you
do not know or do not recall. Never guess at questions or try to rely
on your memory when records that contain facts are available for review.
The transcript of the deposition does not reflect the length of time
it takes to answer a question. Take your time and answer only the question
asked.
• Do accept the fact that a deposition
is a fact-finding process and will probably not result in the plaintiff’s
attorney dismissing your case. Many individuals going into a deposition
believe that if they are allowed to explain their actions, the plaintiff’s
attorney will "see the light," apologize for having been a
nuisance, and ask for dismissal of the case – it is very unlikely
this will happen. Medical malpractice cases are expensive cases to bring
to trial. By the time the deposition is conducted, the plaintiff’s
attorney has most likely had the strengths and weaknesses of the case
evaluated by an expert. Therefore, the plaintiff’s attorney has
formed the opinion that there is validity to his/her client’s claims.
A
motion is a request to the court for an order or ruling on some aspect
of the case. Motions help to narrow or reduce the number of issues in
the case. Motions are utilized to obtain the relief requested and to
preserve a record for appeal.
For
example, a motion in limine is a very common pre-trial motion in malpractice
cases. This type of motion is a request to the court to prohibit opposing
counsel from referring to or offering certain evidence at trial which
the requesting party claims is prejudicial, irrelevant, inadmissible,
etc. If the court does not grant the motion, the requesting party may
allege in an appeal that improper evidence was allowed to be presented
to the jury at trial.
"A
fox should not be one of the jury at a goose’s trial." Thomas
Fuller
During
the voir dire examination the judge and attorneys for each side question
prospective jurors in an attempt to ascertain if a juror’s background,
opinions, life experiences, etc., may affect his or her fairness or
impartiality to decide the case.
A prospective
juror may be challenged for cause or a peremptory challenge may be used
as an objection. When a voir dire examination shows that a prospective
juror is biased or appears to be biased, a lawyer makes a motion to
strike the individual for cause. Each side has an unlimited number of
challenges for cause and the judge may determine, on his or her own
motion that a prospective juror should be struck for cause.
Each
party may also object to a prospective juror without giving any reason.
The laws of the jurisdiction determine the number of peremptory challenges
available to each party.
This
is the attorney’s first opportunity to present the jury with a
description of the case from the perspective of his or her client. The
attorney outlines the evidence that she or he expects to present on
behalf of the client. The opening statements give the attorney an opportunity
to provide the jury with frame of reference for the evidence that will
be presented in the case.
•
Your presence at trial is critical. Depending upon the circumstance
of the particular case, the trial may last from a few days to several
weeks. It is important for you to attend the entire trial. Your presence
shows the jury you are more concerned about the case than attending
to business outside the courtroom. This is generally interpreted positively
by a jury.
At
trial, exhibits are documents, charts, reports, illustrations, etc.,
which are entered into evidence in an effort to persuade or convince
the jury. Exhibits are important to a party’s case because tangible,
physical evidence may illustrate a point more vividly than oral testimony.
An item becomes an exhibit and a part of the record after it is identified
by a witness and there is testimony establishing its relevance to the
issues in the case.
Exhibits
Risk Management Tips:
•
Be aware that, in any malpractice lawsuit, the patient treatment records
will be used as an exhibit. Patient treatment records that are introduced
as exhibits are available for the jury to review during its deliberations.
Often, the plaintiff’s attorney will have a copy of the record
obtained from the patient before you are notified of a suit. Many attorneys
subsequently subpoena doctors’ records simply to identify alterations
to records the patient previously obtained. If any alterations are made,
they will destroy your credibility and/or possibly render your case
indefensible.
• Good
record keeping is a great defense in a lawsuit. In many lawsuits it
will be your word against the patient’s or the patient’s family.
In these situations, clear and concise treatment records are critical.
However, if you review your records and find them lacking, do not, under
any circumstance, add, delete, or change them in any way. Poor records
will simply be classified as poor records, but altered records will
completely destroy your credibility.
•
Sometimes at trial, portions of the record are reproduced on large display
boards or projected via an overhead projector, and magnified several
times their actual size, to illustrate a point. If you are ever tempted
to alter a treatment record, even when you think there is legitimate
information that should be added, just imagine the impact on a jury
when the alteration is projected onto a six-foot screen in the courtroom!
• Do not alter treatment records in
any way. Altering a patient’s record is a crime in many states!
Questioning
of witnesses may be by "direct examination" or "cross-examination."
A lawyer does a direct examination of any witness aligned with the lawyer’s
client and case and independent witnesses he or she calls to testify.
On direct examination the witness must testify without the help or suggestions
of the examiner. On cross-examination a lawyer questions witnesses who
are aligned with the opposing side, witnesses who are hostile and independent
witnesses called by the opposing side. The cross-examiner has the power
to exert more control over the testimony by suggesting the "correct"
answer in the way the question is asked, leading the witness’ testimony
in a way not permissible on direct examination, and requiring the witness
to be very specific in his or her answers.
The
expert witness is a person with special education, training and experience
in a particular subject or field, who possesses superior knowledge respecting
a subject about which persons having no particular training are incapable
of forming an accurate opinion or deducing correct conclusions. The
trial court judge makes the determination as to whether a witness is
qualified to testify as an expert. The party who wants the individual
qualified as an expert introduces evidence of the individual’s
qualifications. Once the court has decided that a witness may testify
as an expert the jury must decide, after listening to the expert’s
testimony, what weight should be given to the expert’s opinion.
The
expert witness testifies about the accepted professional standard of
care, gives an opinion about whether the defendant met the standard,
and whether the alleged breach of the standard of care was the proximate
cause of the injury. The expert’s opinion must be based on a reasonable
medical certainty; there must be sound hypothesis for the opinion.
Witnesses/Expert
Witnesses Risk Management Tips:
•
Prepare for your testimony with your defense lawyer. An inaccurate or
unfortunate statement may do irreparable harm to a case.
• The impression a witness makes will
have an impact on the jury. Your appearance, mannerisms, patterns of
speech, etc. may influence the jury and you should review these issues
when preparing to testify.
The
closing statement is a summation of the evidence that has been presented
and the relationship of the evidence to the issues in the case. The
attorneys for each side will also summarize the evidence that they think
the other side has failed to establish
Contrary
to the view created by movies and television, trials are not won by
dramatic closing arguments. Thorough pretrial preparation and the effective
presentation of witnesses and exhibits at trial win a lawsuit.
:
Effective risk management techniques, such as proper
documentation, good communications with patients and colleagues, and
meeting the standard of care, provide the basis for evidence that will
support a defense in the event of a professional malpractice lawsuit.
After
closing arguments the judge gives instructions to the jury about the
law and the procedures they should follow during deliberation. These
instructions or "charge to the jury" are guidelines for the
jury in applying the substantive law to the contentions of the parties
and the evidence that was presented. Lawyers for each side can submit
requests for charges to the jury. The judge evaluates these requests
and decides whether to incorporate any of them into his or her instructions
to the jury.
The
verdict form is given to the jury to complete during their deliberations.
The form asks the jury to answer specific questions that thereby resolve
the basic issues of fact in the case.
After
the trial court has rendered a judgment based on the jury verdict, a
party to a lawsuit has the right to ask an appellate court to review
whether the trial court committed an error that adversely affected the
outcome of the case. An appeal is not a retrying of the case. A party
cannot appeal just because it disagrees with or is disappointed with
the outcome of the trial and thinks that it was unfair or unjustified.
In
an appeal the appellant (party prosecuting an appeal) must specify the
errors that the trial court made that the appellant believes caused
the erroneous result. The appellate court reviews the trial court’s
record to decide if the alleged errors occurred and whether the errors
may have prejudiced the outcome of the trial. If the appellate court
finds prejudicial error it can vacate the trial court’s ruling
and order a new trial or, as a matter of law, order the entry of a different
judgment.
No
trial is perfect, errors will be made by all parties involved. An appeal
only comes into play if the error(s) made likely had a significant influence
on the outcome of the trial. Appeals are very costly and time-consuming.
A party must carefully consider the potential for success on appeal
before undertaking this course.
Resource
List
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Medical Malpractice: An Episode in America’s Hidden healthcare
Crisis. New York: The Free Press, 1986.
Gutheil, T.G. & Appelbaum, P. S.: Clinical Handbook of Psychiatry
and the Law. New York: McGraw-Hill, 1982; 2d edition, Baltimore, Williams
and Wilkins, 1991; 3d edition, Baltimore: Lippincott, Williams and Wilkins,
2000.
Gutheil, TG. The Psychiatrist in Court: A Survival Guide. Washington,
DC: American Psychiatric Press, 1998.
Gutheil, TG. The Psychiatrist as Expert Witness. Washington, DC: American
Psychiatric Press, 1998.
Jacobs, DG and Brown, HN, eds. Suicide: Understanding and Responding:
Harvard Medical School Perspectives. Madison, CT: International Universities
Press, Inc., 1989.
Jacobs, DG. Depression Screening Procedure Manual. Belmont, MA: McLean
Hospital, 1991.
Jacobs, DG, ed. Suicide and Clinical Practice. Washington, DC: American
Psychiatric Press, Inc., 1992.
Jacobs, DG, ed. Harvard Medical School Guide to Suicide Assessment and
Intervention. Harvard Medical Publications, 1998.
Simon, RI. Clinical Psychiatry and the Law, Second Edition. Washington,
DC: American Psychiatric Press, 1992.
Simon, RI and Sadoff, RL. Psychiatric Malpractice: Cases and Comments
for Clinicians. Washington, DC: American Psychiatric Press, 1992.
Simon, RI. Concise Guide to Psychiatry and Law for Clinicians, Second
Edition. Washington, DC: American Psychiatric Press, 1998.
Simon, RI and Lifson, LE. The Mental Health Practitioner and The Law:
A Comprehensive Handbook. Cambridge, MA: Harvard University Press, 1998.
Werth, B. Damages: One Family’s Legal Struggles in the World of
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