Foreword by Kristi Wright
Receiving a lawsuit can be a daunting experience, especially for medical professionals. In this guest post, Diego Rojas, Vice President of Claims, outlines what to expect throughout the legal process. With over 20 years of litigation experience, Diego is well-equipped to guide you through the complexities of medical malpractice lawsuits..
As an attorney, former litigator, and claims consultant, I have firsthand experience with the complexities of medical malpractice lawsuits. These claims can take a considerable amount of time to resolve, often causing substantial stress for medical professionals, even when the allegations are unfounded. By understanding the timeline and key stages of the legal process, and utilizing the tools available through Curi Insurance, you can navigate the situation more effectively and reduce the associated stress.
1. Initial Notice of a Lawsuit
The legal journey often starts with a notice of intent to file a lawsuit, a legal requirement in many states before a formal lawsuit can be initiated. Some jurisdictions start with a lawsuit without a pre-suit phase. This notice starts a pre-filing period (generally 90 to 180 days) during which both parties can investigate the claim and explore possible resolutions. Alternatively, you may receive a letter of representation from the patient’s attorney signaling an impending claim.
Regardless of how you receive the news, it is crucial to notify Curi Insurance immediately. Your assigned claims consultant will review the allegations, meet with you to discuss the claim and examine the medical records. If necessary, a defense attorney specializing in medical malpractice cases will be assigned to your case. You’ll need to be prepared to provide all relevant medical records and documentation regarding the care provided to the patient/plaintiff.
It's important to remember that not all claims result in lawsuits. Often, a notice is served to preserve the statute of limitations or give the claimant’s attorney more time to investigate the claim. It is not uncommon for a notice to be issued without leading to a lawsuit. However, once a lawsuit is filed, you or your attorney will receive a summons and a copy of the complaint, which outlines the plaintiff’s claims. This officially starts the litigation process.
2. Response to the Complaint (Answer)
After receiving notice of the lawsuit, you and your legal team generally have a short time (often 20 to 30 days) to file an answer to the complaint. This formal response will admit or deny the allegations and present defenses. Common defenses may include:
- The medical professional provided care that met the accepted standard of care.
- The injury was not causally related to the medical professional’s actions.
- The patient’s condition was due to an underlying health issue, not negligence.
Your defense attorney may also raise legal challenges or file motions to dismiss the case if the allegations do not meet the requisite legal standards.
Once an answer is filed, the court will typically issue a Scheduling Order, detailing deadlines to complete key aspects of the case.
3. Discovery Phase
The discovery phase is often the longest part of the litigation process, potentially lasting months or even years. During this time, both sides gather evidence through various methods, including:
- Interrogatories: You will need to answer written questions under oath.
- Depositions: You will be questioned by the plaintiff’s attorney under oath in a formal setting outside the courtroom. While this can be intimidating, your defense attorney will prepare you thoroughly.
- Document Requests: You may be required to provide patient records, treatment notes, and relevant communications. Please remember once you are notified of a claim, you should save everything for your attorney’s review.
Expert witnesses, typically other medical professionals, will play a crucial role in reviewing the case and testifying regarding whether the care provided met the applicable standard of care. Both sides will present expert opinions to support their arguments.
4. Pre-Trial Negotiations and Settlement Discussions
After the discovery phase, the parties may engage in settlement discussions, which can occur at any stage of litigation. In some instances, the case may be referred to mediation, where a neutral third party facilitates discussions to reach a mutually agreeable resolution.
At Curi Insurance, our claims philosophy is, “We Defend Good Medicine,” and we stand firm against unreasonable demands. Our experienced claims professionals collaborate closely with our insureds and defense counsel to determine the best strategy for each case. However, if settlement demands are excessive, we are prepared to go to trial.
Settlements can expedite resolution but may have collateral consequences. Often, insurance carriers like Curi, are obligated to report settlement to the relevant medical licensing board and the National Practitioner Data Bank (NPDB). Additionally, settlements will be recorded on your insurance record, potentially affecting future premiums and credentialing.
5. Trial
If the case does not settle or is not dismissed, it will proceed to trial. This phase requires active participation as you defend your actions in court. A detailed examination of trial procedures will be discussed in a future post.
6. Verdict and Potential Appeal
The verdict may favor either party or assign shared liability. If you are found liable, damages may include compensation for medical expenses, lost wages, and pain and suffering. Statistically, we win a significant majority of trials, underscoring our commitment to defending quality care. If the jury rules against you, your defense attorney can file post-trial motions to challenge the verdict or reduce damages. Conversely, if the verdict is in your favor, the plaintiff may choose to appeal, which can prolong the case by months or even years.
While this may seem overwhelming, understanding these six stages of a medical malpractice lawsuit can help you navigate the process with greater confidence. Collaborating closely with experienced legal counsel and Curi Insurance is crucial for achieving the best outcome.
In our next blog, Kristen Janicek, Curi’s Director of Claim Operations and a former medical malpractice attorney and nurse, will offer insights on what to do—and what not to do—once you've been served with a lawsuit.
Should you want additional information about the litigation process, we suggest listening to Dr. Gita Pensa’s podcast: Doctors and Litigation: The “L” Word: First Steps, You’ve Been Served.
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