During litigation, your most frequent question to your attorney may be “What happens next?” As doctors, you are not trained in the chronology of a medical professional liability lawsuit. Once you have a stake in a suit, however, knowing what to expect is important. This knowledge allows you to effectively prepare your defense and lowers your stress over the unknown. Here are the key stages in the life of a lawsuit.
The “90-Day Notice”
A physician’s first formal knowledge of a claim will usually come in the form of a letter that is required under Section 364 of the California Code of Civil Procedure. This statute is part of the Medical Injury Compensation Reform Act and its goal is to allow an opportunity for parties to resolve a complaint over medical care before a lawsuit is filed. Once sent, the claimant may not file the suit until 90 days, hence the letter’s common name. The physician receiving such a letter must notify CAPAssurance Claims Services immediately. In fact, it is important for CAPAssurance to get the actual letter and the envelope so that certain statutory rights can be preserved.
Request for Records
A patient—or a plaintiff’s attorney—may request copies of the physician’s medical records even before sending a 90-day notice. If a 90-day notice has been sent, CAPAssurance Claims Services will also request a copy of your records so that it can immediately begin its evaluation of the claim’s merits. Whether the request is by a patient, an attorney, or by CAPAssurance, do not alter any medical records. Changes or late additions to the medical record can and will be used against you at your deposition or at trial and may trigger serious coverage complications.
Service of the Summons and Complaint
If a lawsuit is filed, the physician will receive two legal documents, served simultaneously: the Summons and the Complaint. The Summons notifies you that a lawsuit has been filed. The Complaint states in general terms the grounds for the lawsuit. Like the 90-day notice, these documents should be turned over to CAPAssurance as soon as they are received. Generally, the law requires a plaintiff (which may be a patient or the patient’s family) to file a suit for medical malpractice within one year of forming a suspicion of negligence over a medical injury. (A longer “statute of limitations” may apply for minors and for hidden injuries.)
A Visit to Your Office
Shortly after you have notified CAPAssurance of the 90-day notice or suit, your CAPAssurance claims specialist will schedule a personal visit to your office. If the claim is in litigation, your defense attorney may join the claims specialist in that meeting or will schedule a separate visit. You should prepare for this meeting by reviewing your chart notes beforehand. During your first meeting with these professionals, the defense team will begin to form: You bring the best knowledge of the facts and medical care to the team while the claims specialist and attorney bring expertise in conflict resolution and the litigation process. Only by working together can the three of you arrive at the best possible conclusion of your lawsuit.
Interrogatories
After the request for records, your first substantive brush with the discovery phase of litigation will likely be in the form of “interrogatories.” Interrogatories are written questions posed by the attorneys on both sides of the lawsuit in order to officially obtain information relevant to the case. Your attorney will discuss with you the interrogatories sent by the plaintiff’s attorney and the appropriate responses to the questions. Responses to interrogatories are signed under penalty of perjury and therefore must be carefully addressed. A plaintiff may send interrogatories within the first few weeks or months after the summons.
Deposition
The deposition is another tool used by attorneys in the preparation for trial or arbitration. In fact, most attorneys will tell you that depositions are the most important of any pre-trial task. In essence, the deposition is the opportunity for an attorney to ask questions of a party or witness before trial. All responses in a deposition are given under oath and the entire proceeding is recorded by a certified court reporter. The deposition may be videotaped. It is important to prepare for your deposition and to take the process seriously: A poor performance (sarcasm, unusual nervousness, uncertainty in your answers) may motivate a plaintiff’s attorney to take your case all the way to trial.
Alternatively, a competent performance could give the other side pause if the case is weak. Because preparation is key to giving a good deposition, your defense attorney will arrange a special meeting with you several days before the scheduled date of your testimony. You should expect that your deposition will be scheduled within six months after the summons.
Motion for Summary Judgment
Your defense attorney may tell you that he or she wants to file a “motion for summary judgment.” This is a formal request that the judge (not the jury) decide the merits of the case on the basis of the law. In a medical professional liability case, a defendant usually brings a motion for summary judgment when the plaintiff’s attorney does not have a physician to say that you failed to comply with the standard of care. Should the plaintiff somehow obtain a physician’s declaration that you did fall below the standard of care, the motion for summary judgment will usually fail and the case must be heard by a jury. Motions for summary judgment are usually filed between six months after the summons and up to four months before trial.
Mandatory Settlement Conference
Thirty days prior to the trial date, the judge overseeing your case will usually order a “mandatory settlement conference.” Both the defendant and the plaintiff must be present at the settlement conference—exceptions are rarely granted. At these conferences, the judge will attempt to get the parties to agree on a settlement. You should plan on a day out of your office for this meeting.
Trial
California courts typically set cases for trial within two years of the initial filing. A medical liability trial takes about two weeks to complete.
By trusting your defense attorney and claims specialist, you will make it through your lawsuit. And by taking care of yourself in the process, you will finish with your spirit — and your practice — intact.