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THE ANATOMY OF A LAWSUIT 2 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 healthcare 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: l any communication from an attorney representing a patient. l any threat of a claim or suit by a patient or family member. l any untoward result that was not anticipated or that was, or was not, an inherent risk of the treatment given or surgery performed. l any request from a facility to participate in Quality Assurance/Risk Management meetings regarding an inquiry/investigation regarding treatment given.

Reacting to these warning signs immediately gives us a chance to start compiling your potential 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 become involved.

3 Malpractice is professional and medical II. YOU HAVE BEEN SERVED WITH malpractice is the negligence of a doctor. Negligence is the LEGAL PAPERS. TIME IS OF THE failure to use reasonable care under the circumstances; ESSENCE. doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something Be sure to: that a reasonably prudent doctor would do under the l Note the date and method of service. The three most circumstances. It is a deviation or departure from accepted frequently used methods of service include 1) personal practice. delivery directly to you; 2) delivery to another at your New York State Pattern Instructions (Civil). (see place of business, dwelling, or abode, followed by a Appendix for complete text) 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 Non-Party Witness document without first discussing this with MLMIC.

Under certain circumstances, you may receive a subpoena l Call the MLMIC Regional Claims Department to appear as a non-party witness in a pending action. If this immediately. occurs, it is imperative to notify MLMIC immediately so legal counsel may be assigned to protect your interest. o (212) 576-9850 [New York City, Westchester, Bronx, and Richmond Counties]

o (516) 794-7200 [Kings, Queens, Nassau, and Reporting Events Suffolk Counties]

In the course of your practice, an untoward incident may o (315) 428-1188 [upstate New York] occur which you feel could lead to a claim or suit. These incidents, also called ªevents,º should be reported to o (518) 786-2700 [Albany area]. MLMIC's Claims Department immediately so that basic data l The teamwork begins immediately. You will be assigned can be gathered soon after the incident occurs. These events a Claims Department representative who will handle will not be reported to any government agency, nor will they your file in the office. This individual will proffer affect your insurance in any way. 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.

4 l Keep in mind that once you have been served with legal III. BUILDING YOUR DEFENSE: papers, MLMIC generally has only 20 days in which to THE TEAM GROWS respondÐeither to appear on your behalf or to have an to the drafted and sent (essentially, the Giving MLMIC representatives your full cooperation is not ªanswerº denies any general made). At the only the prudent course to follow, it is also mandatory. same time, your appointed attorney will serve a Condition 2b of your insurance policy reads, in part, as of a demand for a in which the follows: ªEach Insured must cooperate with us in the must specify the nature of the charges against you. preparation of the defense, in investigating and in settling l If you fail to notify the company within the allotted time, Claims. For example, when we ask an Insured to, they an automatic may be levied against you by must attend hearings, depositions, or default. Therefore, your quick response and cooperation proceedings.º are crucial components for a successful defense. l If you receive any additional legal papers dealing Meeting With Your Field Representative with this case, be sure to inform MLMIC's Claims The information provided to your Claims Representative is Department. then passed on to the Field Representative in your area. This individual will contact you and arrange for a personal Do not: interview, asking that in the interim you secure a copy of the plaintiff's pertinent records. l alter your records under any circumstances. MLMIC can defend, with difficulty, an incomplete record, but it The purpose of this initial meeting is to obtain from you a can not defend a fraudulent one. detailed account of what transpired during your treatment of the plaintiff. The representative's questions will be probing, l ignore or discard the or complaint. That exhaustive and possibly even irritating in their detail. But will only exacerbate the problems and hinder the remember, this Field Representative is another key member defense efforts being made on your behalf. of your defense team. l take matters into your own hands. Calling the plaintiff Once the interview is completed, the Field Representative or his/her attorney to challenge or cajole will only harm will send copies of your records and hospital charts to your case. MLMIC's Claims Department, along with a summary of your l speak to anyone about your case, including the conversation. These new materials are then incorporated patient, other medical professionals, or the facility into your case file and given to the company's expert where the care was provided. Speak only with your reviewers for their comments. MLMIC representative and assigned defense counsel.

5 IV. PEER REVIEW If these guidelines are not respected, or you are displeased with the treatment being afforded you by counsel, MLMIC After examining your file, MLMIC's consulting experts fully expects you will call it to our attention. express their professional opinions regarding your case. Just like the Field Representative and your Claims While their initial analysis may not determine how MLMIC Representative, your counsel is also working for you and is a will deal with the case, it will provide a better picture of the vital member of your overall defense team. extent of liability. Their advice and review, together with the investigation to date, will then be passed on to your defense Cooperation with your attorney is imperative for a well- counsel. defined defense

V. INITIAL MEETING WITH COUNSEL VI. THE EXAMINATION BEFORE

Defense counsel will review all of the materials gathered The Examination Before Trial is a crucial episode during the thus far and will then meet with you. development of your case because the involved parties are under oath. This means that whatever you say will become The purpose of this meeting is to discuss potential part of the permanent record. If you state something as fact complications in your case, what you will need to do in your at the EBT and then contradict it in , the record from own defense, and what to expect as the case goes along. the EBT can be produced and your credibility impeached. MLMIC has formulated certain guidelines which defense Therefore, you must be well prepared for this event. attorneys must follow. Strict adherence to these guidelines In preparation for the EBT, you should: is required. MLMIC also requires, among other things, that the : l review those records and charts identified by your attorney thoroughly. l meet with you well in advance of the times you must give testimony, either prior to or at trial. l review all appropriate details because you will be asked highly technical questions about medical facts which, l do adequate research and preparation for your defense on a day-to-day basis, you probably haven't thought prior to your Examination Before Trial (EBT). about for a while. l maintain a professional and helpful attitude toward Listen very carefully to the advice your attorney gives your particular case. you about preparing for your EBT and how to respond to l be available to keep you updated or answer any questions. questions you might have about your case's continuing At the conclusion of the EBT, your defense counsel will . advise us about how, in his/her opinion, the examination

6 went: what kind of an impression you made as a witness The Decision to Fight (very important); what kind of an impression the plaintiff Should MLMIC's judgment, based on the data collected thus far, made as a witness; and potential strengths and weaknesses be to take your case to trial, a series of activities are initiated. in your case. l Bill of Particulars: Already a part of your file, the bill of particulars lists the the patient allegedly VII. SETTLE OR FIGHT? suffered, as well as the plaintiff's theory regarding alleged departures in care. Members of your claims The Decision to Settle team verify these allegations to determine whether or If, after the EBT, a comprehensive review of the case file not the patient has really suffered as much as he/she indicates that your case is not defensible, then MLMIC will says. Issues defined in the Bill of Particulars will have try to settle out of court . . . but only after this has been figured prominently in your EBT. discussed with you and your written consent to settle l Physical Exam: An impartial physician or dentist is obtained.* instructed to examine the plaintiff. Equipped with a It has always been MLMIC's policy and strongly held copy of the Bill of Particulars, this doctor's task is to conviction that cases of genuine malpractice should be evaluate the patient's claims of injury. settled as rapidly as possible for the sake of the patient. l Investigations: Where the independent doctor Seeing a case through trial can take years, and we believe reports, or investigation demonstrates, discrepancies that an individual injured by an act of negligence should between the allegations and reality, MLMIC may hire receive just compensation swiftly so a return to as normal a independent investigators to research and document lifestyle as possible can be facilitated. the plaintiff's activities. Unfortunately, despite this belief, it is sometimes difficult l Questions and Answers: You will be contacted by your to settle cases prior to trial because reports of large Field Representative to assist in resolving the following: awards have so heightened anticipation that claimants and their attorneys are invariably looking for unrealistic o Problems or questions that have arisen from in- compensation. house review or by defense counsel in its analysis of the plaintiff's allegations;

o Identification of an expert in your specialty who could review your case, independent of MLMIC's * MLMIC need not obtain this written agreement from those consulting doctors; and policyholders who have waived their right to consent to o Identification of an expert who would be willing to settle via endorsement. testify on your behalf at the trial.

7 VIII. TIME Pre-Trial Preparation Do not assume you won't have to testify until the trial is After the EBTs and the physical examination of the plaintiff, well underway. In fact, it is a common plaintiff's tactic to call nothing further will happen unless and until the plaintiff you, or one of the other , as their first witness. ªnotices it for trialº (places the case on the trial calendar). Therefore, just as in preparation for the EBT, your ability to Pursuant to Uniform Rules, require note of issue respond intelligently to questions asked of you is vital to within 18 months and the trial date fixed at the pretrial your defense. conference. Follow the advice of your attorney prior to reviewing any This may appear to be a time of quietude. Some defendants professional literature pertaining to the issue(s) in question. think that, because they haven't heard anything for a while, Additionally, you should go over the patient's medical records the case has been dropped. maintained in your office, along with the hospital chart, if Unfortunately, that is not usually true. There may be long you saw the patient in that setting. Finally, thoroughly review periods of time when you don't hear anything from anyone, your transcript. As we mentioned earlier, if your but that doesn't mean things aren't being done. You will be testimony at trial deviates from your deposition testimony, notified if the case has been dropped. your credibility can be impeached.

You should feel free, at any time, to call the Claims Department or your defense counsel to obtain a status Throughout this pre-trial period, you will be in close contact update on your case or to obtain answers to any questions with your defense counsel, who will instruct you on court you might have. procedures, defense strategies, and the various traps the plaintiff's attorney may attempt to lay for you in cross- examination. IX. TRIAL OF THE ACTION

When you step into the courtroom, it may seem like you During the Trial have entered another world. Taking part in a trial is never easy, particularly when the course of treatment you have Your presence, from the beginning of the trial to its recommended for a patient and your professional judgment conclusion, is extremely important. It takes time and effort, are being questioned. You must be prepared. 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.

8 It is important for you to demonstrate, by your presence and with your complete cooperation, your MLMIC defense team your demeanor, that this case means a great deal to you. will do everything in its power to see you safely through the gauntlet of litigation. In recognition of the importance of your active participation, your policy provides a level of reimbursement for attendance at trial. GLOSSARY

Bill of Particulars: An amplification of a which A Team Effort supplies more information and detail, affording the adverse During the trial, you and your defense counsel will function party a more specific picture of the claim or defense. as a team, one assisting the other. : The person or entity against whom a lawsuit is You must be helpful to, and supportive of, your attorney. brought. Problems will probably come up that will require your : Generally, the stage of a lawsuit commencing professional opinion and advice to solve. The plaintiff will with service of summons and complaint, and ceasing (unless call an to testify against you, and your otherwise ordered) with the of a Note of Issue, during defense counsel will consult with you to review some of the which full disclosure of all material necessary in issues that have been made in the course of this testimony. the prosecution or defense of an action is produced and Your counsel will be alerting you to tactics of intimidation exchanged by the parties or as ordered by the Court. that may be used on you by the plaintiff's attorney. Listen to Examination Before Trial (EBT) or Deposition: A method his/her advice. of obtaining disclosure of information which is material and You are a scientist and, by nature, want to explain, to necessary to an underlying lawsuit by way of sworn oral clarify. The plaintiff's attorney may ask you convoluted testimony in response to questions posed by the opposing questions and try to restrict you to answering ªyesº or party's attorney. ªno.º You will be frustrated. However, in the course of the Expert Witness: A physician or dentist qualified by virtue of trial, with questioning by your own counsel, you will get the his/her skill, knowledge, education, experience, and training opportunity to tell your story. who can testify as to his/her opinion of the degree of care The trial may be long or short; however, it will never be rendered, compliance with or deviation from the standard of pleasant. care, and the cause of the injury claimed. The sufficiency of the witness' qualifications to testify in a malpractice action, It is not a comfortable experience, having a jury of lay as well as the scope of the testimony, rests in the discretion people deciding whether you did or did not exercise proper of the trial court. professional judgment in your treatment of a patient. But

9 Plaintiff: The person initiating a lawsuit. Court of : The highest court in the State of New York. This Court, with few exceptions, only reviews questions : The documents by which both plaintiff(s) of . 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 Negligence of Action: MalpracticeÐPhysician (the elements of each or defense. Court's instruction to a jury): ªMalpractice is professional : The procedural methods by which negligence and medical malpractice is the negligence of summons, , and subpoenas are delivered. The a doctor. Negligence is the failure to use reasonable care purpose of the procedural methods is to assure that the under the circumstances; doing something that a reasonably parties have proper notice of pending actions and defenses. prudent doctor would not do under the circumstances, or Once the procedural methods are satisfied, the court has failing to do something that a reasonably prudent doctor to bind the parties to its determinations. would do under the circumstances. It is a deviation or departure from accepted practice. Subpoena: Judicial process whereby a witness is subjected to the jurisdiction of the court and required to give relevant A doctor who renders medical service to a patient is information ªunder penaltyº (which is the definition of obligated to have that reasonable degree of knowledge and ªsubpoenaº) of contempt for disobedience. ability which is expected of (doctors, surgeons, specialists) who (perform, provide) that (operation, treatment, medical Summons: A document issued by the plaintiff's attorney service) in the medical community in which the doctor which, when properly filed, commences an action. practices.

The law recognizes that there are differences in the NEW YORK STATE COURTS: abilities of doctors, just as there are differences in the abilities of people engaged in other activities. To practice Supreme Court: The Supreme Court is a misnomer. This medicine a doctor is not required to have the extraordinary court is not supreme; in fact, it is not one, but two rungs knowledge and ability that belongs to a few doctors of below the State's court of last resort...the Court of Appeals. exceptional ability. However every doctor is required to It is the trial court for most medical malpractice actions. keep reasonably informed of new developments in (his, Appellate Division: This Court hears appeals from the her) field and to practice (medicine, surgery) in accordance Supreme Court and from County Courts, the Family Court, with approved methods and means of treatment in general the Surrogates' Court, the Court of Claims, and the Appellate use. The standard to which the (doctor, surgeon) is held is Terms of the Supreme Court. The Appellate Division measured by the degree of knowledge and ability of the reviews both law and facts, the latter including exercises of average doctor [if specialist, state type] in good discretion made at the trial level. in the medical community in which the doctor practices.

10 In performing a medical service, the doctor is obligated to The information contained within this brochure is provided use (his, her) best judgment and to use reasonable care. By to educate the reader. It is intended for general information undertaking to perform a medical service, a doctor does not purposes only and is not, nor is it intended to be, legal guarantee a good result. The fact that there was a bad result advice. 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) considers and chooses between two or more medically acceptable alternatives, 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.º

(New York State Pattern Jury Instructions. Rochester: Lawyers Cooperative Publications.)

11 Our Defense Never Rests

MLMIC.com New York City (212) 576-9800 (800) 275-6564

Long Island (516) 794-7200 (877) 777-3560

Syracuse (315) 428-1188 (800) 356-4056

Albany Area (518) 786-2700 (800) 635-0666