WHAT
HAPPENS DURING A MEDICAL MALPRACTICE LAWSUIT?
This article will provide physicians with a summary of the entire legal process
associated with medical malpractice lawsuits – from the filing of the lawsuit against
the doctor to the possibility of an appeal after an adverse verdict before a jury. The
author hopes that this article will help remove some of the mystery and uncertainty
physicians may have concerning the legal system.
The article will familiarize
physicians with the legal process associated with medical malpractice lawsuits in
California.
1. Complaint
The initiation of a lawsuit against
a physician for malpractice occurs with the delivery of a summons and complaint. The
summons warns the physician of the importance of the complaint. The complaint states the
general nature of the allegations being made against the physician.
The patient who is suing the
physician is known as a plaintiff. The physician or physicians, as well as any hospital
being sued in the complaint, are known as defendants. The law also requires the plaintiff
to give the defendants at least ninety days notice that a malpractice action will be
initiated.
A defendant may challenge the legal
sufficiency of the allegations in the complaint by way of a pleading known as a demurrer.
Ultimately, the defendant must file an answer with the court which formally denies the
allegations in the complaint.
The delivery, or service of a
summons and complaint by a plaintiff, and the response by way of an answer by a physician,
usually takes a number of weeks to complete.
2. Discovery
The law permits all parties to learn
about the allegations and defenses of the other parties in the action. This part of the
litigation process is known as discovery. A party may be personally questioned at a
hearing known as a deposition. The attorney for the plaintiff will probably take the
physician’s deposition. The deposition of other witnesses may also be taken.
Written questions known as
interrogatories may be sent to a party. A party or a witness may be required to deliver
specified documents and records after receiving a request for production of documents from
another party. Finally, a party may ask theopposition to admit the truthfulness of certain
facts in a pleading known as a request for admissions.
The law has defined certain rules
regarding the manner by which each party can conduct discovery. The court often resolves
disputes between parties over the discovery rules. A formal request filed in court by a
party asking that the other side comply with the rules is known as a motion. Disputes
between the parties over the law itself are often the subject of a motion.
The law permits each party to retain
physicians who will testify at trial as expert witnesses on behalf of the party. Each
party is allowed to learn the identity of all experts who will testify and take their
depositions shortly before trial.
The entire discovery process can
take only a few months, but can also take a number of years, depending upon the
availability of witnesses and the need to complete the process quickly.
3. Settlement
At any point in the litigation
process, the parties may settle the dispute. The decision to either offer to settle a
lawsuit or accept a demand to settle by a plaintiff is up to the physician. The
physician’s insurer must have the physician’s written permission to settle a
case on a physician’s behalf. The decision to settle a case is a very complicated one
that depends upon many complex factors. The physician’s attorney and insurer can
assist the physician in making this decision. Physician should be aware of a federal law
requiring insurance companies to report all settlements in medical negligence actions to a
federal government data bank.
4. Trial
Because of the large number of cases
being filed and the small number of judges available to hear them, it usually takes years
before a case comes to trial. Most malpractice cases are decided by a jury of twelve
persons selected by the parties incourt who will determine whether each defendant
committed malpractice. The court will instruct the jury that a physician is negligent and
liable for damages suffered by a plaintiff if the physician's care and treatment of the
plaintiff fell below the standard of care ordinarily exercised by physicians under similar
circumstances.
Expert witnesses are often used by
each party in an attempt to persuade the jury that the standard of care has or has not
been breached.
If a jury finds a physician
negligent, it must determine the extent the plaintiff has been damaged. Damages may be in
the form of additional medical expenses, loss of income, and pain and suffering. Damages
for pain and suffering in California are limited in medical negligence cases to a maximum
of $250,000 under the law.
The average medical malpractice
trial may take two to three weeks. The physician’s presence in court throughout the
trial is highly recommended.
5. Appeal
If the court makes an error about
the law in the trial, a losing party can appeal an adverse verdict to an appellate court.
The law typically does not permit appeals of factualdeterminations by a jury. An appellate
court can reverse an adverse verdict and order a new trial or enter a new verdict. A
losing party can appeal a decision by an appellate court to the Supreme Court. However,
the Supreme Court has the power to refuse to hear an appeal.
The appeal process usually takes a
few years to complete.
