What You Should Do If You Get A Summons

Author(s): 
By Robert L. Goldstucker, JD

Being sued by a patient can result n a range of emotions and confusion regarding the legal process. This attorney helps you navigate the legal process from the time one receives the summons to the deposition and settlement process. A sheriff comes to your office, asks to see you and hands you a summons and complaint. You have been served with a lawsuit. Welcome to my world. This world is not about the medicine. You will not be judged by your peers. There is no search for the truth. In this world, it is about perception, credibility and spin.    Service of a lawsuit can occur in a number of ways, depending upon the rules of your jurisdiction. Various jurisdictions allow service of a summons and complaint by certified mail, process server, a sheriff’s deputy or acknowledgement of service. One may be served at home, at the office or wherever you may be found. Service is the beginning of a lawsuit and triggers action on your part to avoid an entry of default against you.    The complaint, sometimes accompanied by an affidavit from an expert, will characterize your treatment of the plaintiff in the most dastardly terms. The complaint may describe you as having been negligent in your treatment and diagnosis of the patient, in your selection and execution of surgical procedures, and/or your postoperative care. You may be accused of a delay or failure in obtaining a consult, in diagnosing and treating an infection, or in recognizing complex regional pain syndrome (CRPS). Often complaints allege unnecessary surgery or surgery without adequate prior conservative care.    Sometimes you will be accused of altering your records, performing unnecessary surgery for the sole purpose of generating income or of committing fraud or battery. Lack of informed consent, guaranteeing results and covering up mistakes are also often alleged. You will be accused of causing grievous injury, robbing from the plaintiff his or her ability to work and engage in the activities of daily living, and destroying the intimacy previously enjoyed with his or her spouse.    Anger, shock, embarrassment, fear and bitterness are emotions that physicians commonly feel soon after they have been served. Sometimes those feelings persist but able counsel can help manage this roller coaster and put this process in perspective.

Why A Quick Response Is Essential

Upon receipt of the summons, you should immediately contact your malpractice insurance company by telephone. Your carrier will want to know the date you were served. Your carrier will then ask for a faxed copy of the summons and complaint, and will subsequently assign you defense counsel. If you are uninsured, speak to your lawyer at once and let him or her know you were served with a lawsuit and the date of service. An “answer” must be filed to every complaint. Otherwise, a default will be entered against you and all allegations contained in the complaint will be deemed to be true. Some jurisdictions require an answer to be filed in 15, 20 or 30 days. Do not delay. Notify your carrier or your lawyer at once.    After receipt of a summons, do not alter the patient’s chart. Do not alter the chart even if, upon review, you notice errors in transcription or dictation, incomplete entries, skipped progress notes, inaccurate operative reports or incorrect coding. You may wonder how the patient will ever find out if you make such additions or corrections to the chart. Perhaps you sent a copy of all or part of your chart to a subsequent physician, a health insurance carrier, a worker’s comp carrier or to the patient or his or her attorney. Perhaps you will be asked under oath whether you made any additions or changes to the chart following service.    Will you perjure yourself? The great likelihood is that any change in the chart will be uncovered during the litigation and such changes will reflect poorly on your integrity and character.

Be Careful What You Say And Whom You Say It To

After receiving the summons, do not contact the patient or his or her attorney by telephone, e-mail, letter or fax. You will not talk the patient out of the lawsuit. If the complaint contains misinformation, your lawyer will address those matters. Speaking to the patient or opposing counsel will serve to give plaintiff more information and invite a “he says/she says” controversy later.    In fact, you should not discuss your treatment of the patient or the allegations of the lawsuit with anyone, including your partner, your office manager or the subsequent treating physician. Any conversation you have about this patient or your treatment with anyone other than your lawyer or your insurance representative may be discovered during the course of litigation.    A statement to a colleague that “I should have referred the patient sooner” or a colleague’s comment that your choice of antibiotics was “not optimal” could be devastating. Such statements could also undermine certain defenses should such statements be discovered during the litigation process.

Essential Keys To Assisting With Your Defense

The first time and every time you discuss with your attorney and insurance representative the treatment that gave rise to the lawsuit, you should be candid and forthright. Defense counsel can address and defend every situation.    However, defense counsel cannot create a defense strategy for facts and information that you withheld or incorrectly conveyed. Incomplete or false information severely hampers your defense counsel’s ability to anticipate the plaintiff’s theory of recovery and prepare legal and factual defenses to the same.    The defense of a lawsuit is not a unilateral endeavor to be undertaken solely by your defense counsel. Your defense counsel should have expertise in podiatric medicine but he or she will need your help with respect to the medical issues.    Your defense is a partnership. The attorney brings advocacy skills and tactics to the table. The doctor brings to the table a thorough understanding of his or her chart, the medical issues and the justification for the manner in which the patient was treated. The doctor serves as a resource for any necessary literature search and he or she is available to discuss medical and factual issues on a mutually convenient basis.    The physician’s responsibilities may seem obvious but it is shocking how often the defendant physician fails to study and know his or her chart frontward and backward. Defendants also commonly fail to research the medical issues in order to fully understand the basis for the plaintiff’s allegations or even to understand a devil’s advocate perspective. In other cases, defendants fail to assist the defense counsel fully in the defense of the case.    Following the service of the complaint and filing of an answer, often each side will prepare and serve written discovery consisting of interrogatories, requests for admissions and requests for production of documents. All of these are designed to learn information about the case. Typically these need be answered within 30 days. It therefore becomes important to be available to, and to assist, your attorney in responding to these requests promptly.

How To Make The Right Impression At The Deposition

Typically, after the exchange of written discovery, each party will have his or her deposition taken. This is perhaps the seminal event in a lawsuit. Those present at a deposition include the person being deposed, counsel for the plaintiff, counsel for the defendant, a court reporter taking down every word spoken during the deposition, and perhaps the other party.    Lawsuits are not won at deposition but the importance of the deposition cannot be overstated. The stated purpose of a deposition is to learn whatever information one can from the witness in order to help the prosecution or defense of the lawsuit and to nail down the witness’s answers so that the witness is unable to give a “better” answer at trial.    While the plaintiff’s counsel may be on a fact-finding mission and seek to nail down your testimony, an equally important result of the deposition is the impression you make on plaintiff’s counsel. He or she will evaluate (as will your counsel) you as a witness. He or she will be thinking, “Will the jury like this person?” The opposing counsel will be asking him- or herself, “Is this the type of person a juror would like to have as his or her physician?” Accordingly, your credibility and your demeanor are of primary importance at the deposition.    Why does this make a difference? Any decent plaintiff’s attorney evaluates his or her case during every phase of litigation. The plaintiff’s counsel typically does not make any money on a case unless the plaintiff prevails at trial or unless the case settles. Even in a case of likely negligence, if the plaintiff’s attorney believes the jury will find the defendant doctor knowledgeable, credible, respected and well liked, that attorney may be less willing to invest substantial time and money to prepare his or her case as well as it could be prepared.    In other words, if the plaintiff’s attorney feels that the jury is likely to find in your favor, or even against you but feels the verdict is not likely to be inflated due to the jury’s dislike or distrust of you, the plaintiff’s counsel will be less likely to spend top dollar on a top expert. He or she will also be less likely to spend the extra time required to prepare the case perfectly for trial, and more willing to settle a case of negligence for bottom dollar rather than top dollar.    The way to “win” at deposition is via thorough and exhaustive preparation. It is critical to study your chart, the surgery center record, the medical literature, opposing and supporting expert depositions and reports, subsequent medical records, and the plaintiff’s deposition. This may take 20 or 30 hours over several weeks but the payoff is enormous. After my client prepares this way, I meet with him or her in my office for three hours two weeks before the deposition. I then meet again or confer over the telephone for one hour one week before the deposition. Finally, if necessary, we meet again a day or days before the deposition. This is the effort, the team effort, required to win at deposition. This is the one and only chance before trial to make an impact on the outcome of the case.

What You Should Expect During Settlement

Typically, following depositions of the parties and experts, courts often require the parties to meet for a settlement conference. Sometimes the parties will agree to mediation in an effort to settle the case. Whether to settle is often dependent upon the medicine (did the defendant physician practice medicine beneath the standard of care?) and issues unrelated to the medicine.    An example of the latter may be when the doctor only has $200,000 in liability insurance coverage and the patient’s injury is a below knee amputation. A legitimate concern may be that if the doctor loses the case, even though the doctor does not believe he or she was negligent, the verdict likely will be greater than his or her $200,000 policy limits.    Should that occur, the doctor’s personal assets would be at risk to satisfy the amount of the judgment greater than insurance coverage. In this situation, even when the doctor does not believe the treatment was negligent, often the doctor will ask that the case be settled in order to avoid risk to his or her personal assets.    Should the decision be made to seek settlement, either due to catastrophic injury to the plaintiff and insufficient liability coverage or because the doctor made a mistake and was negligent, the insurance company frequently views mediation as the best means to settle the case on favorable terms.    Typically, mediation involves presenting the facts of a case to a neutral party (the mediator), who then works with each side, often inviting an introspective review of the case with consideration of worse case scenarios. The mediator will then carry the offer and counteroffer back and forth to each side until the case settles or a stalemate ensues.    The primary advantage to mediation is that the defendant’s insurance carrier has ultimate control with respect to whether the case settles and the amount of the injury settlement. If the plaintiff’s expectations are unrealistic, the carrier can cease negotiating and terminate the mediation.    Should a case not settle or be dismissed by the plaintiff, ultimately the case will be tried in front of a jury. This also takes a great deal of preparation. This time the audience is the jury as opposed to the plaintiff’s counsel. When you testify, your goal is to have all the jurors wish that if they had a problem requiring treatment by your specialty, they would want you as their doctor. Again, preparation is the key. If the jury wishes you were their doctor, you will win the case 95 percent of the time, irrespective of the nature of the allegations against you.

Closing Argument

Statistically, 4 percent of you will be sued this year. Of those lawsuits, 98 percent will be resolved before trial through voluntary dismissal, upon a defense motion or with mediation and settlement. Of those suits, the majority will be dismissed with no payment made to the plaintiff or be tried in front of a jury with a defense verdict returned. When payment is made to the plaintiff, in the vast majority of cases, the payment will be less than six figures. Being sued is not the end of the world. It is likely the case will resolve favorably without trial.    Nonetheless, it is not fun being in my world. Make every effort to avoid entering my world in the first place but that is the subject of another article at a later time.    Mr. Goldstucker is the managing partner of the Nall and Miller law firm in Atlanta. He has represented podiatrists since 1979 and has defended 700 podiatric malpractice cases. He also represents podiatrists on licensing and privilege matters, purchasing and selling practices, non-compete agreements, employment contracts and Medicare issues.    Editor’s note: For related articles, see “What You Can Learn From Nightmare Malpractice Cases” in the August 2002 issue of Podiatry Today, “Staying Claim-Free During the Malpractice ‘Crisis’” in the June 2002 issue or “What You Can Do About Malpractice Insurance” in the December 2003 issue. Also be sure to visit the archives at www.podiatrytoday.com.

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