Injury, breach, proximate cause and injury are the central issues throughout the litigation process. Under our legal system, that process has three major phases: the complaint; discovery; and the trial.

The Complaint

If someone has initiated malpractice proceedings against you, the news will reach you through a summons or an attorney’s lien.

The Summons. The first of these is the most definitive and direct. The plaintiff’s attorney prepares a complaint against you and files it with the clerk of the court. At this point, a lawsuit has come into being. You will be notified of it by means of a summons served either by a sheriff’s officer or registered mail. It will order you to appear at a given court on a specific date to defend the charges against you.

Being served with a summons can be a shocking experience. Even more disturbing is the complaint itself. It will accuse you of multiple actions and omissions. Do not take these allegations literally. Since it is too early for plaintiff’s counsel to determine the specifics she will try to prove against you, she has made the compliant broad enough to cover all the possibilities; it is largely boilerplate, more form than substance.

From the date of the summons, your attorney will have a limited period of time -usually 20 - 30 days - to answer the allegations or move to strike the summons as legally insufficient.

Upon receipt of a summons or notice of suit against you, notify your insurance company immediately. The insurance company will take appropriate action through legal counsel. Lack of a proper response may result in forfeiture of your right to a defense. A default judgment can be entered against you in which the plaintiff introduces evidence, and the court assesses damages against you without hearing your defense. In this event, your insurance carrier, will not provide insurance coverage because it’s rights (primarily to prepare a defense) will have been prejudiced by the policyholder’s inappropriate action or lack of action. Failure to notify your insurance company violates the terms of your professional liability insurance.

Notice of Attorney’s Lien. Before filing suit, a plaintiff or his attorney may seek direct negotiations with your insurance company. In this event, you may be notified of a lien, stating that the attorney is making a claim against you. The effect of this document is to prevent a direct settlement with the plaintiff, bypassing the attorney and her contingent fee. While the notice is not a lawsuit, it does represent the intent to file one if settlement is not otherwise reached.

Notice of the attorney’s lien will usually ask you to have your insurance carrier call the plaintiff’s attorney. Contact your insurance company immediately. Don’t ignore the notice. Even though the lien does not carry a statutory date by which you must respond, the plaintiff’s counsel will expect to hear from your insurer within a reasonable period of time. If she does not, she is likely to file suit.

Pre-Discovery

Medical Records. Begin immediately to assemble all available records pertinent to the plaintiff’s treatment. These may include your notes, X-Rays and lab reports, and a full set of hospital records - charts, nurses’ notes, discharge instructions, separate notes, etc. If any are missing, make arrangements for a thorough search. Do not request records form physicians who cared for the plaintiff before or after the period in question. If such records are needed, your attorney will obtain them.

Emergency physicians do not typically retain medical records in the ordinary course of business. However, following a bad patient outcome, the emergency physician may make a copy of records, make certain notations, and may have copies of lab reports and X-Rays.

At some point you will be asked to send these materials to the insurance company or your attorney. For your own reference, you should also make and retain copies of materials in your possession.

Under no circumstances should you alter your records in any way. Do not ‘supplement,’ ‘clarify,’ ‘complete’ or reconstruct them. Any attempt to change them probably will be discovered, compromising your credibility. In certain circumstances it may be advantageous to make notes providing clarification of certain events. Do not prepare any notations regarding the case without consulting defense counsel.

It is important that you review all records immediately. You are not expected to remember details concerning your treatment of the plaintiff. In fact, your records will be considered more reliable than your recollection, and you will be encouraged to refer to them during your deposition and trial testimony. Even so, the events they cover will never be fresher in your mind than they are now, and it is in your interest to review them thoroughly as soon as possible. Independent recollection of the events strengthens deposition and trial testimony.

The Attorney. The insurance company, perhaps with your assistance, will choose an attorney with special expertise in defending professional liability lawsuits. She will be able to build the strongest possible case only with your help.

Remember, those on the plaintiff’s side may not be after justice; they may not even be greatly concerned with the truth. Instead, their primary goal is recovery of alleged damages, and the more persuaded they are of your negligence, the more aggressively they are likely to pursue that goal.

The key to your defense will be good preparation, which will require close cooperation with your attorney. She will rely on you to provide and interpret medical records in the case. She may also ask for help in locating relevant literature, identifying expert witnesses, and developing exhibits or visual aids.

Co-Defendants. The complaint against you may also list others as defendants. These can include your partners, consulting specialists, the hospital, pharmaceutical companies, manufacturers of health care equipment - in short, any individual, business entity, or institution that may have been involved in treating the plaintiff.

Settle or Defend? Early in the litigation process, you will have to face this crucial decision. If, after reviewing the facts of the case and the patient’s injury, the defense team determines that there was no breach in a standard of care, and that the patient’s condition is unrelated to the care provided, then the case should be vigorously defended. However, if there was an obvious breach in a standard of care, or if the care provided was questionable, then the defendant EP may want to discuss early settlement, to limit defense costs and to avoid a jury verdict. Jury verdicts are often multiples of proposed settlements.

The insurance company’s philosophy is important. Some companies believe that the best way to discourage unfounded malpractice suits is through vigorous, uncompromising defense. You may want to look for an insurer with an aggressive defense policy.