Being named as a defendant in a malpractice suit may be your first exposure to civil litigation. You will probably wish it would just go away. However, no matter how you feel about the merits of the claim, you must not ignore it. To alleviate some of your concerns, Physicians Casualty Risk Retention Group RRG (PCRRG) tries to demystify the process and explain how a successful defense may be mounted. Understanding the process and what your involvement is likely to be along the way strengthens your ability to cope with it. While you will face occasional spurts of activity related to your case, you may not hear anything new about the proceedings for extended periods of time. For case-specific information, contact your PCRRG claim representative, or attorney. For general questions regarding malpractice litigation, review PCRRG’s web site at www.physicianscasualty.com.
As a PCRRG insured physician or employee, you are covered under a professional liability policy with limits per claim. Those limits do not include the defense cost. Unless otherwise advised, your representation through PCRRG confirms your coverage for the matter at hand
PCRRG coverage limits are among the best in the industry. Moreover, coverage is aggregated when more than one covered provider is found liable for an adverse outcome. That said, in very rare events potential damages exceed the available insurance coverage and the personal assets of a defendant become, at least theoretically, exposed. Your PCRRG appointed counsel and claim representative will discuss claim implications.
According to the law, to prevail against you in a medical malpractice case, the plaintiff has to prove “more likely than not” all of the following:
You had a duty to provide services to the patient and meet certain care standards;
A failure to meet the standard of care occurred;
Damages (a loss or injury) resulted; and
The failure to meet the standard of care directly caused the damages.
Both sides use expert testimony to establish the applicable standard of care and whether or not any failure to meet it resulted in the alleged loss to a “reasonable degree of medical certainty.” PCRRG’s Legal Team is responsible for the investigation, evaluation, and the ultimate resolution of your case. The accusatory wording of a Complaint or plaintiff attorney’s letter can be difficult to absorb. You will need to remind yourself that much of what goes on is less personal than it feels. Confronting the emotional impact of a suit is important in preparing your defense. Discussing facts of the case with colleagues risks their being called by the plaintiff to testify about those discussions. However, you can share your emotional response with trusted friends and colleagues. Furthermore conversations with your spouse, your PCRRG claim representative, your defense attorney, and company attorney are protected from discovery.
Upon notification by the plaintiff, PCRRG will begin to capture all the pertinent information and determine a course of action. You and other clinicians or employees involved in the patient’s care will be interviewed. Your defense team will include you, your claim representative, and the defense attorney. Your PCRRG claim representative coordinates the investigation and serves as your resource for questions about your claim. PCRRG coverage includes the appointment of and payment for your defense attorney. The attorney PCRRG selects will be experienced in defending medical malpractice cases. He or she will be your advocate and is independently responsible for litigating your case. When multiple PCRRG insured defendants (including non-physicians) are named in a malpractice suit, PCRRG usually assigns one law firm to provide a coordinated defense for all defendants. However, if conflicts of interest exist or arise among defendants, separate legal counsel will be assigned. Even though your attorney is hired and paid for by PCRRG, you are the client for whom he or she will be working. If you choose to hire a personal attorney, he or she will be restricted from direct involvement in your malpractice case, and PCRRG will not contribute to fees charged by such counsel.
The civil complaint you have received initiated the lawsuit. To contest the complaint, your PCRRG assigned attorney will file an answer together with any motions requesting that the court take some action in the case. You do not have to respond, personally, to the complaint. Your PCRRG assigned attorney handles that action.
Florida requires that all medical malpractice suits be started by a Notice of Intent. An expert witness (physician) will render opinion.
In addition to investigating the circumstances giving rise to the suit, your defense team will engage in the legal processes of discovery in order to gather information from the plaintiff and anticipate the likely arguments at trial. You will have to provide written answers to interrogatories (written questions) from the plaintiff’s attorney. As part of your defense, your attorney will submit interrogatories for the plaintiff to answer. Copies of your records within your control may be requested by the plaintiff via a Request for Production of Records, which can be attached to the deposition notice, or served independently. Depositions are question and answer sessions given under oath and recorded by a court stenographer. Generally, depositions are held in the plaintiff attorney’s office over the course of several hours, or even days. The plaintiff’s attorney will ask a series of questions (often expanding upon the interrogatories) in order to obtain information about your professional background and the medical care at issue in the case.
During the discovery phase you will be most directly involved in the litigation— assisting your attorney as the facts underlying the lawsuit are brought out. Your defense attorney will assist you in responding to interrogatories. Before, or at the time of your deposition, you will have to supply the plaintiff with unaltered copies of your (relevant) medical records. Even if you discover a notation error, you cannot amend or alter your medical records. If necessary, you will be able to augment the information in your records through answers to the interrogatories or during deposition. Your attorney will help you prepare for your deposition, and accompany you through the process. Your answers are considered sworn testimony and must be truthful. Transcripts from depositions can be used at trial to highlight inconsistent testimony.
Expert medical witnesses are key to defending medical malpractice allegations. Both parties use experts to establish the applicable standard of care and whether or not any failure to meet that standard led to compensable damages. The expert’s role is to explain to the attorney—and if necessary, the jury—how your treatment compared to the standard of care. PCRRG carefully researches potential expert medical witnesses to determine if they:
Have clinical or research experience relevant to the case;
Can communicate clearly and simply to a jury;
Are willing and available to testify in court;
Have published consistent views on the pertinent issues;
Are board certified in the relevant medical specialty.
You will have an opportunity to suggest the most appropriate individual for review and/ or consultation in your case. Local experts are more likely to be respected by jurors and also incur fewer travel and scheduling conflicts. However, your defense team will work to avoid any conflict for both you and the expert. Confidentiality is stressed with experts. Upon your request, no one with whom you have professional or social contact will be asked to review or testify in your case.
Except for clear cases of malpractice, PCRRG aggressively defends claims. Many claims against PCRRG insured providers have been resolved in their favor and without payment to the plaintiff. Even if defending a claim will cost more than a settlement, PCRRG believes this posture discourages the filing of non-meritorious claims and reduces costs in the long run. Some lawsuits are dismissed, either by the plaintiff, or by the court. Some cases are settled in the discovery phase. In the absence of dismissal or a settlement, a lawsuit is prepared for trial. Drawing on facts learned through the discovery process and your deposition, your attorney will thoroughly prepare you to testify before a judge and jury—even if your defense team is pursuing other case resolution options. Where circumstances warrant, PCRRG may retain an attorney-specialist to work with you and your attorney in developing your testimonial skill, so that you may feel more confident and relaxed while testifying.
Settlement is not an admission of negligence; it is a formal agreement You will be included in the process of resolving the that ends the legal dispute. Settlement may occur at any point in the claim or suit in which you are named, life of a claim or suit. Many claims against PCRRG insured including any decision to settle with payment. Defendants have been settled. PCRRG retains the right, however, to settle any case without insured consent.
PCRRG ardently pursues alternatives to resolving suits by jury trial. Upon agreement of both sides, mediation or binding arbitration may be used. In mediation, a third-party helps both parties arrive at an acceptable settlement, if possible. In binding arbitration, the arbiter (often a retired judge) decides whether or not there has been a breach in the standard of care; if so, he or she determines the damages and whether or not they were causally related to the negligence. Binding arbitration decisions are final, i.e., they cannot be appealed. In both forms of ADR, your participation is direct. In mediation, you will confer with your counsel as the defense develops its negotiating position in a dynamic process. In arbitration, you will testify before the arbitrator as to the facts of the matter.
A small percentage of suits naming PCRRG insured defendants have gone to trial, and defendant physicians win a substantial majority of those that go to trial. In Florida, most cases take at least three years to reach trial. Trials can run from a few days to several weeks. If your case continues to trial, you will have to spend time preparing with your defense attorney and PCRRG claim representative. You will be expected to attend the entire trial. Being well-prepared is critical to the clear presentation of facts and, ultimately, a persuasive defense case. Defense counsel will spend significant time preparing you to cogently respond to questions posed at trial by attorneys for both sides.
All malpractice claims filed against physicians must be reported by PCRRG to the Florida Board of Medicine when the file is closed. Any medical malpractice claim payment made on your behalf must be reported to the National Practitioner Data Bank (NPDB) if it meets all of the following criteria:
1. Payment was made to the claimant…
2. resulting from a written complaint or claim specifically naming you and demanding monetary payment for damages…
3. based on the provision of health care services.
The entity that actually makes the payment on your behalf is responsible for filing the NPDB report.The NPDB will send you a copy of the report submitted, and you have the right to request factual changes. The NPDB will also provide you an opportunity to add a brief statement in response to the contents of the report. For more information on accessing your NPDB file, call the Data Bank Helpline at 1.800.767.6732, or go to www.npdb-hipdb.com. You can also expect to be asked to self-report a history of any closed and open claims against you when applying for or renewing medical licensure, seeking clinical privileges, or joining certain “preferred provider” networks or plans. The information and time frame sought can be extremely variable. Read any forms requesting this information very closely. PCRRG will readily provide you assistance in seeking information on your own claims history.
PCRRG understands the stress faced by defendants in lawsuits that challenge their professional judgment and competence. We are committed to arranging the best available defense on your behalf, and to keeping you fully informed and consulted throughout the process. Please do not hesitate to contact PCRRG with any questions or concerns you may have. For more information, call your PCRRG representative at 727-581-6400 or visit www.physicianscasualty.com.
Your suit may be dropped or dismissed shortly after the original filing, or it may take years to go through the entire trial and appeal process. In Florida, the majority of suits take at least three years after the filing date to reach trial.
Medical Review Evaluation of Liability and Damages (Negligence)
Interrogatories, Deposition
Binding Arbitration
A formal malpractice case resolution process outside the jury trial system.
The written response to the initial complaint of the plaintiff, setting forth the grounds of the defense.
Both sides agree that a third party arbitrator will decide the matter in dispute.
The causal relationship between the alleged act of negligence and the alleged damages.
A written or oral demand for compensation for damages caused by an alleged act of negligence.
The person filing the claim.
The PCRRG employee who coordinates the activities of the defense team.
A review of the medical records pertinent to a malpractice claim or suit usually conducted by medical consultants prior to review by medical experts.
Written material filed with the court to institute a civil action (suit).
Refers to both the injury to a patient and the monetary compensation for those injuries.
Individual (e.g., physician, nurse) against whom a lawsuit is brought.
Legal counsel assigned by PCRRG to represent your interest in a malpractice lawsuit.
A method of discovery in which the lawyer for one side asks questions of a party or witness on the other side.
A variety of legal mechanisms used by both sides in a case to obtain information from the other party.
An obligation to the patient who was (allegedly) harmed.
The monetary payment made to a claimant for damages under an agreement of insurance.
A series of written questions from one party in the case to the other side to be answered under oath.
A claim that has formally entered the civil litigation system.
Responsibility for conduct falling below the standard of care.
A qualified individual providing evidence based on inference after reviewing available medical information, not personal knowledge of the situation being considered.
Liability based on acts or omissions in the provision of health care or professional services.
Both sides agree on a third party to help them reconcile differences or negotiate a resolution of the matter in dispute but retain the decision-making power.
Federally established repository of information regarding. Malpractice payments and disciplinary actions against health care providers.
A legal theory based on the duty of an individual to act and use such care as a reasonably prudent person would do in the same or similar circumstances.
This is part of the legal process in Florida. It puts all parties on notice of pending litigation. It typically includes an expert witness statement.
Discussions, analyses, and recommendations of a physicians diagnosis, care, and treatment of patients conducted by colleagues with similar training and background in the same practice setting.
One or more individuals, or someone authorized to act on their behalf, who files a lawsuit seeking monetary damages or other relief.
The person within a health care institution responsible for coordinating the institutional risk management program.
The resolution of a formal claim or lawsuit by the parties involved, without judicial intervention or proceedings.
The standard of care and skill of the average member of the profession practicing a given specialty, taking into account advances in the profession. Expert testimony is required to establish the relevant standard.
The time period in which a lawsuit alleging malpractice must be brought.
An official order requiring a person to appear at a certain place and time to give testimony on a particular matter or to present certain documents in his/her possession.
See Lawsuit
Notification that an action against the recipient has been filed in court.
Reference – Harvard Education
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Physicians Casualty
611 Druid Road, Suite 512
Clearwater, Florida 33756
Phone. 727-581-6400