WHAT TO EXPECT IN THE EVENT OF A CLAIM
The following monograph was written for HealthCare Professionals’ Insurance Services, and it’s clients, by Robert A. Stevens, Claims Examiner of P&S/Fremont Indemnity Company.
“This is ridiculous. I’ve done nothing wrong. They can’t sue me.”
This is not an uncommon, or even unreasonable, reaction when one receives notice of a malpractice claim. The reality, though, is that “they” can, and will, sue many of you. According to a study published by the AMA in 1991, 7 out of every 10 physicians in the United States can expect to have a malpractice claim filed against them. It is not unreasonable to assume the frequency of claims filed against podiatrists would be consistent to that statistic.
Actually, the fact that you practice in California does not necessarily increase the chances of becoming the subject of a malpractice claim. A recent article in the California Bar Journal reported that California ranks 13 th on the list of most litigious states. So relax, enjoy the sunshine.
“But what if a claim is filed against me? What should I do, and what happens after a claim is filed?”
“Claim (Kleim) n. the demanding of something as a right, to make a claim; (insurance), as a request for payment of compensation.” The New Lexicon Webster’s Dictionary of the English Language.
For our purpose, a claim is the assertion of a legal right, which carries with it a demand for appropriate relief. Generally, in a malpractice action, the first notice of a claim will be a receipt of 90 days’ notice of intention to file suit, as provided by Code of Civil Procedure, section 364.
SUMMONS AND COMPLAINT:
Failure to comply with Section 364 does not invalidate a malpractice suit or judgement; therefore, your first notice of a claim might be service of a Summons and Complaint.
A Summons is a writ issued by the court. Its purpose is to notify the person named that an action has been commenced against him/her, and to appear on a day named to answer the complaint in such action.
A Complaint is a statement of the plaintiff’s claim, setting forth the material facts on which the case depends. Its purpose is to inform the dependant of the nature of the action and the amount of damages claimed.
DUTIES OF THE INSURED RECEIVING PROCESS:
The first thing you must do if notified of a claim, is notify your insurance carrier. The Medical Professional Liability Policy issued to you by Fremont Indemnity Company contains the following statement:
“If a claim or suit is reported against the insured based on an incident covered by the policy, the insured shall, within ten (10) days, by certified mail forward to the Company every document, notice, summons, or other process received by him/her or his/her representative.”
The purpose of this condition is to give the Company adequate opportunity to perform its obligations under the policy.
Upon receipt of claim, the assigned claims examiner will usually direct a letter to the insured confirming receipt of the claim, and requesting copies of the claimant’s medical chart, as well as a brief narrative describing the incident giving rise to the claim. A letter is also sent to the claimant or his attorney acknowledging receipt of the claim, and requesting signed authorizations to secure copies of the records of any other treating practitioners or institutions.
Once sufficient medical records are compiled, the claims examiner will attempt to determine the merits of the claim, frequently forwarding the records and pertinent portions of the claim file to an appropriate medical expert for a further opinion.
If it is apparent at this juncture that there is a reasonable probability that the claimant will be able to support his allegation of negligent treatment, and it is likely that the claim can be judiciously resolved short of litigation, the claims examiner will confer with the insured, and if the insured is in agreement, an effort may be made to settle the claim.
If our investigation, however, concludes that the claim is without merit, or a settlement agreement cannot be reached, the claims will be denied.
Frequently, the first notice of the claim is service of the Summons and Complaint, or a Summons and Complaint is served before our investigation can be completed, or subsequent to denial of a claim. If such is the case, the claim will be referred to an attorney for representation.
The attorney selected will be one of a panel of attorneys approved for use by our claims management. They are attorneys selected for their particular expertise and successful track record in defending malpractice actions. Many of them have additional specialized experience defending particular types of malpractice litigation, such as Podiatric cases. While the Company reserves the right to select the attorney who will defend the claim, any preference you might have is of great concern, and every effort will be made to accommodate the insured who requests representation by a particular attorney from among those on the approved panel.
The primary obligation of the assigned attorney is to insured. In every instance, the assigned attorney is instructed to vigorously defend you against all causes of action, and to consistently act in your best interest. He or she is your attorney, and obligated to be responsive to you.
Certain guidelines have been established by the claims department to ensure consistently and excellence throughout the litigation process. Those guidelines include the following instructions:
The trial attorney to whom the case has been assigned is to telephone the insured, within three business days whenever possible, to advise the insured of their representation.
The purpose of these three particular guidelines is to ensure that a team relationship between the insured and his/her attorney is established as early as possible, and maintained throughout the litigation process.
The assigned attorney will file a responsive pleading with the court. This will consist of either an answer or a demurrer.
The answer is a pleading served on the plaintiff by which the defendant responds to the plaintiff’s demand by an allegation of facts, either denying the allegations of the plaintiff’s complaint, and/or alleging new matters in avoidance which the defendant alleges should prevent recovery on the facts alleged by the plaintiff.
A demurrer is the formal mode of disputing the sufficiency in law of the pleading of the other side. If it is sustained, the plaintiff will then have the opportunity to amend the complaint to alleviate any insufficiency.
At some time during the litigation process, your deposition will be scheduled. Depositions consist of taking the witness’s testimony under oath, and with a record of the questions and answers being taken by a court reporter. The assigned trial attorney will prepare you for this proceeding and will be present to represent you at the deposition.
Depositions of the plaintiffs and any other witnesses may also be taken, and you have the right to be present at those depositions.
Your assigned attorney will contact you before scheduling you deposition of the plaintiffs, and will forward copies of all notices of depositions to you, so that you can plan to attend the depositions, if you desire to do so. You are not obligated to attend.
You are also likely to be served with interrogatories. Interrogatories are written questions to be answered under oath. With your help, your attorney will prepare your answers.
You may also be served with Requests for Production. These are requests for any relevant and non-privileged documents or photographs or any tangible thing. Correspondence to counsel or the carrier need not be produced, but timely objections must be filed.
The court may order the case to arbitration, particularly if the damages sought are less than $50,000. This is essentially an informal trial, and is usually non-binding. Depositions and records are often submitted in place of live testimony.
Either party may reject an arbitrator’s award and proceed to trial of the matter. If neither party rejects the award within 30 days, it becomes a judgement, and therefore binding.
A motion is an application to the court for ruling or for an order. It is made by counsel.
A motion which is frequently filed in malpractice actions is a Motion for Summary Judgement. It will usually be filed together with a declaration by a competent expert in an effort to establish that the care was within the standard, but it may also be filed to resolve other issues, such as statute of limitations. If the plaintiff is unable to contradict that assertion, and the motion is granted, the case will be ended at that point. It is important to remember, though, that all that is necessary to defeat a Motion for Summary Judgement on the standard of care is an expert witness’s declaration contradicting the defendant’s expert.
A Motion for Summary Judgement will sometimes be sufficient to put an end to a frivolous case, but courts are very reluctant to grant them. It is also often used as a method of forcing the plaintiff to identify their expert.
OFFERS TO COMPROMISE:
The plaintiff may present Offers to Compromise, pursuant to section 998 of the Code of Civil Procedure. These are offers to allow you, the defendant, to permit a judgement to be entered against you, and allow to be paid on your behalf in settlement of the claim. The inference is that a compromised settlement is being accepted to avoid the expense and ordeal of a trial. If not accepted, it provides the side making the offer to recover certain costs should they prevail at trial, and verdict rendered will be more favorable for their side than the compromise would have been.
Your attorney is obligated under our litigation guidelines to forward copies of all such offers to you. No offers to compromise which might be pro-offered by the plaintiffs will be accepted without your express written consent.
MANDATORY SETTLEMENT CONFERENCE:
A Mandatory Settlement Conference is a court-ordered hearing to attempt to resolve the matter short of trial. It is presided over by a judge or judge pro tem, and all parties and persons with settlement authority must be present, together with their attorneys an claims representatives. Your attendance as a defendant may not be required if you have granted your full consent for settlement to your attorney or claims representative.
If you do attend the Mandatory Settlement Conference, which is usually the case, you will most likely not be asked to participate in the actual proceedings. The judge will act as a neutral arbitrator while the various attorneys and claims representatives meet, usually in the judge’s chambers, and an effort is made to settle the case short of trial. Your actual participation will usually not be necessary unless, in the judge’s opinion the case could be settled, but with your consent. If such is the case, he may wish to confer with you to determine the reasons for withholding consent. He does not have the power or authority to force you to consent to any settlement.
Webster’s define trial in part as “a test or testing by examination or experience; a trying out; a test of character, power of endurance, etc.; a hardship; a person who or thing which is a source of annoyance or trouble; the state or fact of being proved by suffering or endurance, “as well as,” a judicial examination of inquiry and determination of a cause of a court of law.”
Anyone who’s ever been involved in a trial of a malpractice action would probably say it’s all of those things.
The plaintiff introduces his evidence first. Witnesses are sworn and testify on direct examination by the plaintiff’s attorney. Each then may be cross-examined by the defense. Physical exhibits are identified and offered in evidence.
The plaintiff has the burden of persuasion as the existence of the facts relied upon, the damages suffered, and their monetary value.
At the conclusions of the plaintiff’s case, the defendant may, at its option, introduce evidence in contradiction of the plaintiff’s evidence, as well as evidence sustaining any affirmative defenses which may have been interposed.
The plaintiff then has the opportunity to introduce rebuttal evidence, contradicting the defendant’s evidence. If rebuttal evidence is offered, the defendant then has the opportunity to offer further evidence in contradiction to the rebuttal evidence.
At the close of both the defendant’s case and the plaintiff’s case, there are certain motions or requests for rulings which may be to the court, then both sides are given an opportunity to sum up in an effort to persuade the jury as to the merits of their respective cases.
A unanimous verdict is not required in civil actions in California, nor is it necessary to prove anything beyond a reasonable doubt. If nine of the twelve jurors reach an agreement that the preponderance of the evidence favors one side or the other, a verdict can be rendered.
It is always hoped that the verdict will be consistent with the evidence, and therefore predictable, but such is not always the case. In one recent instance, for example, one of the three doctors admitted on the stand that his own failure to take further actions was most likely the basic cause of the plaintiff’s injuries. The jury failed to bring in a verdict against that doctor after deciding that they liked him “because he came clean on the stand,” and rendered a verdict instead against the other two defendants, apparently because they didn’t like their demeanor on the stand.
A word about settlements is probably in order here. At any point during the litigation process, it may become apparent that the appropriate course is to attempt a settlement of the claim. In fact, it is estimated that about 80 percent of all insurance claims are resolved through negotiation and settlement, rather than trial.
Any time a case does proceed to trial, the chance exists that the trial will be lost. According to a recent article in the Los Angeles Daily Journal, 39% of the medical malpractice claims nationally which proceeded to trial resulted in plaintiff verdicts, an increase from 32% reported in 1993. In California, the percentage of plaintiff verdicts in medical malpractice trials was 32%, up from 22% in 1993. When considering the statistics, it is important to bear in mind that in almost every instance a case is tried either because in the opinion of the defendants, their insurance representatives, the defendant’s experts, and their attorneys, the case was defensible, or an agreement could not be reached as to the appropriate settlement value of the case.
If it is determined that the appropriate action is to attempt a settlement, your consent for settlement will be sought, and unless the withholding of consent is unreasonable, consent is necessary before any settlement negotiations can commence. In the event of a settlement, it is almost always understood, and wording incorporated into the consent form, release, and other settlement documents that the settlement is in compromise of a disputed claim, and does not infer or imply any admission of liability on the part of the insured.
Hopefully, you’ll never be presented with a malpractice claim, but if you are don’t panic, notify your insurance company, and relax, enjoy the sunshine.
The views presented are solely those of Mr. Robert A. Stevens, and should not be considered as legal opinions.