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 defense 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 lawyers become involved. 3 Malpractice is professional negligence 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 Jury 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 answer to the complaint drafted and sent (essentially, the Giving MLMIC representatives your full cooperation is not ªanswerº denies any general allegations made). At the only the prudent course to follow, it is also mandatory. same time, your appointed attorney will serve a notice Condition 2b of your insurance policy reads, in part, as of a demand for a Bill of Particulars in which the plaintiff 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 judgment may be levied against you by must attend hearings, depositions, trials or arbitration 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 summons 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 TRIAL 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 court, 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 lawyer: 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 status. 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.