You’ve been sued for malpractice: What happens next
Service of papers indicating you’ve been sued by a patient for medical malpractice is the last thing any provider wants to receive. Aside from invoking stress and anxiety, malpractice suits require time, attention, and preparation, and can remain pending for long periods until full resolution.
In this first installment in a new bimonthly column, I will cover discrete, but important issues that present themselves in medical malpractice suits to best inform the urologic community of their existence and how attorneys may handle them. Knowledge is power. The more you understand about the legal process and workings of a lawsuit, the better equipped you will be to cope with the emotive aspects of a lawsuit, communicate with your attorney, and contribute to your own defense.
This month’s column is the first of two articles focusing on the anatomy of the medical malpractice lawsuit. Part two will address issues related to expert witnesses and the trial itself.
Service of a summons and complaint
A lawsuit alleging medical malpractice will commence with the service of a summons and formal complaint claiming negligence. Receipt of these papers should prompt immediate notice to one’s carrier, providing any documents received (Proc [Bayl Univ Med Cent] 2001; 14:109-12). Complaints in medical malpractice suits commonly allege that a physician failed to comport with the applicable standard of care, failed to properly diagnose, or failed to properly treat the patient/plaintiff.
There are four components to a negligence claim, each of which the plaintiff must prove (Clin Orthop Relat Res 2009; 467:339-47):
- that the physician owed a duty
- that the physician breached that duty
- the claimed injuries were caused by the breach
- and resulting damages.
It should be noted that the applicable standard of care in a case will depend on the jurisdiction, as states do not have a universal definition of the standard of care (18 American Law Reports 4th 603).