You’ve been sued for malpractice: What happens next

Brianne Goodwin, RNService of papers indicating you’ve been sued by a patient for medical malpractice is the last thing any provider wants to receive. Aside from invoking stress and anxiety, malpractice suits require time, attention, and preparation, and can remain pending for long periods until full resolution.

In this first installment in a new bimonthly column, I will cover discrete, but important issues that present themselves in medical malpractice suits to best inform the urologic community of their existence and how attorneys may handle them. Knowledge is power. The more you understand about the legal process and workings of a lawsuit, the better equipped you will be to cope with the emotive aspects of a lawsuit, communicate with your attorney, and contribute to your own defense.

This month’s column is the first of two articles focusing on the anatomy of the medical malpractice lawsuit. Part two will address issues related to expert witnesses and the trial itself.

Service of a summons and complaint

A lawsuit alleging medical malpractice will commence with the service of a summons and formal complaint claiming negligence. Receipt of these papers should prompt immediate notice to one’s carrier, providing any documents received (Proc [Bayl Univ Med Cent] 2001; 14:109-12). Complaints in medical malpractice suits commonly allege that a physician failed to comport with the applicable standard of care, failed to properly diagnose, or failed to properly treat the patient/plaintiff.

There are four components to a negligence claim, each of which the plaintiff must prove (Clin Orthop Relat Res 2009; 467:339-47):

that the physician owed a duty

that the physician breached that duty

the claimed injuries were caused by the breach

and resulting damages.

It should be noted that the applicable standard of care in a case will depend on the jurisdiction, as states do not have a universal definition of the standard of care (18 American Law Reports 4th 603).

Next: Answering the complaint

Your attorney will “answer” the complaint. Through the answer, various statements alleged by the plaintiff will be either admitted or denied. In addition, your attorney may assert various affirmative defenses on your behalf. Examples of affirmative defenses may include a violation of the applicable statute of limitations, contributory negligence of the plaintiff, or that the plaintiff failed to mitigate his or her damages. The specific language of affirmative defenses will vary by state.

Also see: Extracapsular prostate cancer leads patient to sue

The discovery phase begins after filing of the lawsuit. During discovery, each party obtains relevant materials, documentation, and records, and these are exchanged between parties. The standard for discovery is broad. Generally speaking, information is likely to be discoverable if it is “reasonably calculated to lead to the discovery of admissible evidence.” (73 American Law Reports 2d 12, 15 American Law Reports 3d 1446). Discovery frequently entails the exchange of voluminous documents (often medical records in a medical malpractice action), all of which require careful review by your attorney.

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In the case of a plaintiff claiming continuing injuries or damages, the attorney must assure that updated records are received on the plaintiff to evaluate claims of continuing damage. For plaintiffs claiming lost wages, it is crucial to secure employment records and tax returns.

Next: Giving depositions

Giving depositions

Once “paper” discovery is complete, it is likely that depositions of the parties will be scheduled. The deposition is a formal proceeding, taken under oath, involving the questioning of a party by an attorney (Clin Orthop Relat Res 2009; 467:339-47). A court reporter will make a record of the entire deposition that will later be used in court, if the case goes to trial. For many physicians, the deposition is the single most memorable encounter with the legal system during the lawsuit (Clin Orthop Relat Res 2009; 467:339-47).

Since the deposition is recorded for use in court at a later date, preparation for a deposition is a critical step in a malpractice case. Take, for example, the following two examples of an answer to the same deposition question:

1. Q. Dr. Perez, does the standard of care require that a urologist prescribe ciprofloxacin for a prostate biopsy?

A. No.

2. Q. Dr. Perez, does the standard of care require that a urologist prescribe ciprofloxacin for a prostate biopsy?

A. No, because there is a new Best Practice Policy Statement from the AUA that provides alternative options.

While it may appear that answer two is more appropriate because the urologist is providing information-a defense, really-as to why he or she did not prescribe Cipro for prophylactic treatment, answer one is actually much better. In answer two, the urologist is giving the plaintiff’s attorney more information than what was asked. The plaintiff’s attorney may not know anything about AUA Best Practice Policy Statements, and by answering with superfluous information, you have just tipped off him or her as to where to find additional information that may aid in proving the case.

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Don’t help the plaintiff make his or her case. Physicians are educators. Whether you are a urologist in a teaching institution educating medical students and residents or a urologist in private practice educating your patients, leave your educating tendencies at home on the day of your deposition. Answer only what is asked.

Next: Conclusion

Conclusion

Having an understanding of the components of a legal claim and the impact and significance of each phase of the suit should provide urologists with the ability to react appropriately when claims arise and help prevent surprises (Proc [Bayl Univ Med Cent] 2001; 14:109-12). Knowing what to expect moving forward is comforting, and somewhat analogous to why you never pull a Foley on a Friday.