A Phrase That Makes Every Physician’s Heart Skip a Beat: “You’ve Been Sued”
If you’re named in a medical negligence lawsuit, you’re in good company. According to the American Medical Association, one in three physicians will be sued for medical malpractice during their career. What now? The course of every medical negligence lawsuit is different, but here’s a general idea of what to expect:*
Bottom Line:
“You may feel significant frustration and discouragement after being sued for medical negligence. We encourage you not to be disheartened – being sued is common and not an indication of your medical ability.”
1. The Complaint/Answer
The plaintiff ’s attorney will prepare a complaint and file it with the court system to initiate the lawsuit. In most cases, the plaintiff is the patient; if the patient is deceased, it will be the representative of the patient’s estate. The complaint details allegation(s) asserted against you and potentially against others (e.g., your medical group or other care providers), generally that you breached the applicable standard of care, thus causing injury to the plaintiff.
You’ll be notified of the suit through your practice’s risk manager, a representative from your medical group’s insurance company, or via certified mailing from the plaintiff’s attorney. If the latter occurs, it is important to alert your practice’s risk manager or your group’s insurance carrier immediately. Shortly thereafter, you’ll be contacted by an attorney hired to defend you. Your attorney will share and discuss the plaintiff’s complaint with you, then will file an answer on your behalf, which admits or denies each allegation.
2. Written Discovery
After the answer is filed, the written discovery process begins. The plaintiff’s attorney and your attorney will exchange written discovery requests. Requests consist of interrogatories (questions) and requests for production of documents from each party. Normally, the questions include asking about hospital affiliations, previous investigations of your medical license, if you have provided expert witness opinions throughout your career, as well as your education and training.
You’ll be contacted by your attorney to answer the plaintiff’s interrogatories without the plaintiff present. All communications you have with your attorney are protected under attorney-client privilege so long as no other persons are present.
3. Expert Witnesses
Your attorney will consult with expert witnesses to defend the medical treatment you provided. Expert witnesses are physicians who practice in your specialty and in similar clinical conditions; they will be compensated for their participation. For example, an interventional cardiologist in another state may provide an expert opinion on a case involving a death after STEMI. Different expert witnesses are hired by all parties to testify in support of their respective positions.
4. Deposition
After written discovery and consulting expert witnesses, the deposition stage occurs. Depositions are interviews conducted by parties’ attorneys of people with knowledge of the patient and/or the patient’s treatment. All questions are answered under oath. The interview recordings, both transcript and video, are eligible to be used in court.
Plaintiff Deposition Your attorney will ask the plaintiff any recollection they have of you, the medical treatment you provided, the patient’s medical condition before and after the treatment, and other relevant questions. You can choose whether or not to be present during this deposition.
Your Deposition You will have preparation meetings with your attorney prior to your deposition. The plaintiff attorney’s questions will generally focus on the scope of your practice and your specific treatment of the patient. Your attorney will also be present and intervene as needed.
Expert Witness Deposition(s) Expert witnesses testify regarding their opinion of the patient’s medical condition and whether the patient’s condition is related to the allegations in the lawsuit. All parties’ attorneys are present.
5. Mediation
Most judges order mediation (settlement conference) before trial. Mediation is generally conducted by an experienced attorney or retired judge. The mediator, plaintiff, plaintiff ’s attorney, you, your attorney, and a representative from your insurance company meet in person to discuss potential settlement prior to trial. Your attorney will discuss the strengths of your defense and weaknesses of the plaintiff ’s case. It usually lasts a full business day.
If the lawsuit is resolved at mediation, the plaintiff signs a document called a “Release and Settlement Agreement.” This document normally details that the lawsuit is being dismissed, you are not admitting liability for medical negligence, and the plaintiff is receiving a monetary sum. The agreement will also include various terms and conditions such as barring the patient from filing an additional lawsuit against you for the medical treatment at dispute in the current lawsuit.
6. Jury Trial
If the case is not resolved at mediation, it will proceed to trial. A medical negligence jury trial often takes place years after the lawsuit is filed; it lasts two to three weeks and requires your attendance every day. During the trial, both attorneys provide opening statements, then the plaintiff’s attorney calls their witnesses. Your attorney then calls witnesses to rebut the plaintiff’s allegations and evidence. You will be able to testify, but this is not required; you and your attorney will decide prior to the trial. Lastly, both attorneys provide closing statements. Before deliberations, the jury is instructed to decide whether you breached the standard of care, and if so, the amount of damages to which the plaintiff is entitled. Kentucky Civil Rules require 9 of 12 total jurors to agree upon the verdict.
You may feel significant frustration and discouragement after being sued for medical negligence. We encourage you not to be disheartened – being sued is common and not an indication of your medical ability. Take care of yourself emotionally during this time and reach out to your attorney as needed. The world needs you and the skillset you worked so hard to develop.
*This is not an exhaustive account for each event in medical negligence lawsuits.
Megan L. Adkins is an insurance defense and medical negligence defense attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at madkins@sturgillturner.com or (859) 255-8581. Ashley Boerrigter, MD, is a board-certified OB/GYN and a maternal fetal medicine fellow at the University of Kentucky College of Medicine.
This article is intended as a summary of state and/or federal law and does not constitute legal advice. This article was originally published in the February/March 2024 issue of M.D. Update.
Ashley Boerrigter, MD