Medical Mutual

Understanding the Litigation Process

Once a lawsuit is filed, a complex legal process begins with tight deadlines, long waiting periods and a variety of paperwork. This article will help you understand that process.

Request for Records

You may first become aware that someone is considering a lawsuit when you receive a request for a copy of a patient’s records. After sending the records, you may hear nothing for several months. If you receive another such request a few months later, it may indicate that the person is "shopping" for an attorney to take his case. Each attorney will request and review the records to decide whether there are sufficient grounds to take legal action.

Any time you receive a request for records and you suspect that it is related to a potential lawsuit, contact MEDICAL MUTUAL immediately. We will provide you with guidance in fulfilling the request. Under no circumstances should you make any alterations or additions to the records. Such changes can usually be detected and will make your case indefensible.

How a Lawsuit is Filed

In Maryland, all malpractice lawsuits seeking more than $30,000 in damages must be filed with the state’s Health Care Alternative Dispute Resolutions Office (HCADRO). When the plaintiff attorney files the lawsuit with the HCADRO, he usually files a Request for Transfer asking that the case be waived out of arbitration and into court. Within 90 days, the attorney is required to file a Certificate of Merit with the HCADRO. This is a document signed by any doctor declaring that he has reviewed the records, that he believes the case has merit, and that the treating doctor breached the standard of care. This certificate is mandatory in order for a lawsuit to proceed.

When the lawsuit is transferred out of the HCADRO, it may go to one of three courts:

Circuit Court: This is the court in the county where the incident occurred.
District Court: This court is used for lawsuits in which the plaintiff is asking for less than $30,000.
Federal District Court: This court may be used if a patient lives in another state but came to Maryland to see a physician for medical treatment or a consultation. Since the plaintiff lives outside the state, he can file in federal court.

The filing of a lawsuit with the HCADRO and the Request for Transfer to a court are primarily procedural matters. In rare instances, the case may not be transferred, but will be heard by the Health Care Alternative Dispute Resolutions Office. If this occurs, the entire case will be presented to a panel composed of a lawyer, a healthcare provider and a layperson. The panel’s decision is not binding, and either side can appeal it.

How a Physician is Notified of a Lawsuit

You will probably not be aware if the steps described above are occurring to initiate a lawsuit against you. You will usually learn of the lawsuit in one of three ways: 1) You receive an Request for Transfer from HCADRO informing you that a case against you has been waived to the appropriate court; 2) You are served with a Statement of Claim by a sheriff, other legally authorized official or by certified mail; 3) If MEDICAL MUTUAL is handling a lawsuit against another doctor, and you were involved in that patient’s care, we will let you know that you might receive papers regarding the lawsuit, and we will inform you of how to proceed.

It is vital that you contact MEDICAL MUTUAL immediately if you learn that you are being sued. Do not ignore any papers you receive. The time frame in which a response must be filed is narrow, so we will need to assign you an attorney immediately. The time frames for responding are as follows:

Circuit Court: Your attorney will have 30 days from the date you are served with a complaint to respond.
District Court: Your attorney will have 15 days from the date you are served with a complaint to respond.
Federal District Court: Your attorney will have 20 days from the date you are served with a complaint to respond.

How MEDICAL MUTUAL Initiates the Defense of a Lawsuit

When you contact MEDICAL MUTUAL to report a lawsuit, we will request that you send us a copy of the Order of Transfer, Statement of Claim or complaint, all legal paperwork and a copy of the patient's records. The person you speak with will complete a form called a Notification of Incident. Once coverage is verified, we will assign you an attorney and claims representative.

Within a few days of coverage verification, you will receive a letter from MEDICAL MUTUALacknowledging that we have received the papers you sent and providing you the name of your attorney and claims representative. Also during that time frame, your claims representative will call you to introduce herself. She will not discuss the details of the case with you at this time, unless you wish to do so.

You will be contacted by your defense attorney’s office to schedule a meeting between you, the attorney and the claims representative. At this meeting, the three of you will discuss the facts of the case and review the patient’s records. You will also be informed about the litigation process; what the various phases will be and how long each is likely to take.

The Attorney’s Initial Response

Because of the short time frame required to respond to the lawsuit, your attorney will probably file a response before you meet. Usually there are no specifics in the response, and the attorney can use standard legal language.

Your attorney will also need to file a Certificate of Meritorious Defense within 120 days from the date you were served. This is similar to the Certificate of Merit that the plaintiff attorney had to file. A physician in the same specialty as you will review the patient’s records. He will then be asked to sign an affidavit indicating his belief that you complied with the standard of care and didn’t cause any harm to the patient.

The Discovery Process

The discovery process begins as soon as an attorney is assigned to your case. This process involves pretrial devices or methods for obtaining information about a case. It includes requests for records, interrogatories and depositions.

Your attorney will obtain the patient’s records early in the process. If other doctors treated the patient, she will request copies of those records.

Interrogatories are a set of written questions submitted to parties who might have information about the facts of the case. Your attorney will submit interrogatories to the plaintiff, other treating doctors, and anyone else who is familiar with the circumstances that led to the lawsuit. Interrogatories directed to you will be submitted to your attorney by the plaintiff attorney. Most of the questions will be basic, and your attorney will respond to them. Some will be factual inquiries, such as: “Did the doctor see Mr. Smith on May 1 of last year?” If the questions are inappropriate, your attorney will respond to that effect. If some questions are more complex, your attorney will ask you to prepare a response. She will put your response into the proper legal format for submission.

A deposition involves testimony taken under oath prior to trial from witnesses or parties involved a lawsuit. During a deposition, attorneys for both sides have an opportunity to question individuals to gather information that can be used in the trial. Testimony is recorded by a court stenographer. The deposition is a key part of discovery, and it will require the most preparation on your part.

Depositions usually take place late in the discovery process. Your attorney will initially focus on obtaining records, gathering facts from involved parties and developing your defense.

The Timeframe for the Process

Although our goal is to go to trial approximately one year after you are first served, this is usually not possible. A court date may be set when the lawsuit is first filed, but the date often changes. The court may set the date without checking the schedules of any of the involved parties. Attorneys may have conflicts, expert witnesses may not be available or you may have a vacation scheduled for that time. A delay may also occur if the discovery process has not been completed. In some instances, the parties arrive at the court on the date indicated and a judge is not available. Your attorney will keep you informed about your court date. Be sure to promptly let her know if certain dates are inconvenient for you.

The Settlement Conference

At some point in the process, a court-ordered pretrial settlement conference will be held. In many jurisdictions, you are required to attend this conference. If the court grants permission for you to be absent, you will need to be available by telephone to provide settlement permission if necessary.

Although it is not required by law, MEDICAL MUTUAL has a policy of obtaining an insured’s consent prior to settling a lawsuit.

The Appeals Process

If you win your case and the plaintiff chooses not to appeal, your legal ordeal is over. If the judgment is against you, and there are reasons to do so, your attorney may recommend appealing to a higher court.

A decision cannot be appealed simply because one party isn’t happy with the verdict. The party must have legal grounds for appealing. Such grounds might be an incorrect ruling by the judge during the trial or the judge failing to give the jury proper instructions.

Appeals are first submitted to the Court of Special Appeals and must be filed within 30 days of the verdict being entered into the records. This court may overturn the verdict, remand the case back for a second trial, or agree with the lower court and rule that the verdict stands.

Once the Court of Special Appeals has issued its decision, your attorney has 15 days to appeal to the highest court in Maryland, the Court of Appeals. If this court declines to hear the case, the decision of the Court of Special Appeals will stand. In rare instances, when the facts of a case are of particular interest, the Court of Appeals will hear a case before the Court of Special Appeals.