Major Components of a Malpractice Trial
and Related Risk Management Tips

PRMS Claims Services

SUMMONS AND COMPLAINT

The Summons and Complaint is the set of documents that is served on the defendant(s) to initiate a lawsuit. These documents may also be called a "Notice" or "Petition." Until an individual has been properly served with the Summons and Complaint, he or she has not been "sued." There are different means by which one can be served, depending upon the jurisdiction. In some states, service of the Summons without the proper Complaint is proper service. Do not assume just because you have not been personally handed a Summons and Complaint, that you have not been properly served.

The Summons is a court mandate that informs the defendant that a civil action has been commenced against him or her and requires the defendant to appear in the case and defend.

In a malpractice lawsuit the Complaint generally outlines the patient's allegations against you, and may name other defendants. The Complaint will require a formal answer that will be prepared by your defense attorney. There are time restraints for answering a Summons or Complaint. Usually the defendant must file an Answer in 20 or 30 days, or an extension for filing the Answer must be requested and granted.

Summons and Complaint Risk Management Tips:
  • Contact your professional liability insurance company representative as soon as you receive a Summons or Complaint. A default judgment can be entered against you if there is not a proper and timely response filed on your behalf by your defense attorney.
  • Do not answer the Complaint on your own.
  • Do not contact either the plaintiff directly or his/her attorney. Be aware that any information imparted to anyone except your defense attorney ca • n be used against you later and/or may form the basis of a breach of confidentiality suit.
  • Confine your discussions about your lawsuit. There is a natural inclination to want to discuss your lawsuit with colleagues, family members and/or friends. Reviewing a course of treatment with a colleague may result in an individual being called as a witness in your trial, or conversely, preclude the defense from calling that individual as a witness. Discussions with anyone other than your attorney can be discoverable and subsequently used against you.
  • Establish a written policy for responding to a process server who enters the office and what steps to follow if any legal documents are found on the premises or are received by mail, fax, etc. This policy should be reviewed with office staff during orientation and regularly thereafter.

ANSWER

The Answer is a formal written response by the defendant to the allegations in the Complaint. The defendant serves the Answer on the plaintiff and files it with the Court. In the Answer the defendant denies in part or in whole the plaintiff's allegations, asserts his or her affirmative defenses, and states a request for relief.

Answer Risk Management Tips:
  • Do not attempt to file an Answer on your own. Your defense attorney will do this.
  • Do not contact either the plaintiff directly or his/her attorney. Be aware that any information imparted to anyone except your defense attorney can be used against you later and/or may form the basis of a breach of confidentiality suit.
  • Do cooperate with your assigned defense attorney. The defense attorney represents you, not the insurance company, and is legally and ethically bound to represent your best interests.

INTERROGATORIES

Interrogatories are written questions from one party in the lawsuit to the other party. Interrogatories are one of the tools of discovery. Discovery is the pretrial process by which the plaintiff and defendant obtain facts and information about the case from each other and conduct investigation in order to fully ascertain the facts and to further develop the legal theories involved in the case. Answers to interrogatories are drafted by your attorney for your signature and are based on all the information that is known about the questions at that point in time. Your attorney can object to improper interrogatories.

It is important for the answers be accurate and complete. The court can impose sanctions if a party purposely withholds or conceals information, or gives misleading and incomplete answers. Interrogatories must be answered and served within certain time periods, usually 30 days.

Interrogatories Risk Management Tips:
  • Do provide specific information about the treatment of the patient and forward copies of the legal documentation and treatment records requested by your defense attorney. Providing your professional liability insurance company representative and defense attorney with requested documentation and other information about the patient's treatment will assist in the development of your defense by allowing experienced individuals to analyze the information and obtain expert opinions. Your insurance policy usually has a provision that requires your cooperation in defending a lawsuit.
  • Do be honest and candid with your defense attorney and claims representative. Attempts to conceal information, even if you think it is unfavorable to your case, seldom remain unexposed. Moreover, dishonesty can make a case indefensible. Honesty and candidness allow the your defense attorney to review the facts in their entirety and prepare a defense.

DEPOSITIONS

A deposition is a formal question and answer session in which one party to the lawsuit asks oral questions of the other party or witnesses under oath. It enables a party to obtain testimony for the purpose of discovering information or to preserve the testimony for use at trial. Depositions are usually conducted in a lawyer's office and a stenographer or court reporter records the answers. Your defense attorney will represent you at your deposition. Your defense attorney will object to inappropriate lines of questioning and to questions about issues deemed irrelevant to the case.

Depositions Risk Management Tips
  • Do prepare for your deposition testimony. It is essential to prepare and review your testimony with your defense attorney. The plaintiff's attorney will be reviewing your transcribed testimony for any inconsistency in testimony, so preparation and honesty is essential for a successful deposition.
  • Knowledge of the treatment records is the key to a successful deposition. If you are prepared and familiar with the records your confidence and honesty will come across in the deposition and transcript.
  • Keep answers short and to the point. Try to answer questions with a simple "yes" or "no." Explanations tend to give the plaintiff's attorney more information than needed and may prompt more questions. Of course, if an explanation is necessary, by all means, state it.
  • Think before answering a question. If you are unsure of an answer to a question, you may respond that you do not know or do not recall. Never guess at questions or try to rely on your memory when records that contain facts are available for review. The transcript of the deposition does not reflect the length of time it takes to answer a question. Take your time and answer only the question asked.
  • Do accept the fact that a deposition is a fact-finding process and will probably not result in the plaintiff's attorney dismissing your case. Many individuals going into a deposition believe that if they are allowed to explain their actions, the plaintiff's attorney will "see the light," apologize for having been a nuisance, and ask for dismissal of the case – it is very unlikely this will happen. Medical malpractice cases are expensive cases to bring to trial. By the time the deposition is conducted, the plaintiff's attorney has most likely had the strengths and weaknesses of the case evaluated by an expert. Therefore, the plaintiff's attorney has formed the opinion that there is validity to his/her client's claims.

MOTIONS

A motion is a request to the court for an order or ruling on some aspect of the case. Motions help to narrow or reduce the number of issues in the case. Motions are utilized to obtain the relief requested and to preserve a record for appeal.

For example, a motion in limine is a very common pre-trial motion in malpractice cases. This type of motion is a request to the court to prohibit opposing counsel from referring to or offering certain evidence at trial which the requesting party claims is prejudicial, irrelevant, inadmissible, etc. If the court does not grant the motion, the requesting party may allege in an appeal that improper evidence was allowed to be presented to the jury at trial.

JURY SELECTION -VOIR DIRE EXAMINATION

"A fox should not be one of the jury at a goose's trial." Thomas Fuller

During the voir dire examination the judge and attorneys for each side question prospective jurors in an attempt to ascertain if a juror's background, opinions, life experiences, etc., may affect his or her fairness or impartiality to decide the case.

A prospective juror may be challenged for cause or a peremptory challenge may be used as an objection. When a voir dire examination shows that a prospective juror is biased or appears to be biased, a lawyer makes a motion to strike the individual for cause. Each side has an unlimited number of challenges for cause and the judge may determine, on his or her own motion that a prospective juror should be struck for cause.

Each party may also object to a prospective juror without giving any reason. The laws of the jurisdiction determine the number of peremptory challenges available to each party.

OPENING STATEMENTS

This is the attorney's first opportunity to present the jury with a description of the case from the perspective of his or her client. The attorney outlines the evidence that she or he expects to present on behalf of the client. The opening statements give the attorney an opportunity to provide the jury with frame of reference for the evidence that will be presented in the case.

Opening Statements Risk Management Tip:
  • Your presence at trial is critical. Depending upon the circumstance of the particular case, the trial may last from a few days to several weeks. It is important for you to attend the entire trial. Your presence shows the jury you are more concerned about the case than attending to business outside the courtroom. This is generally interpreted positively by a jury.

EXHIBITS

At trial, exhibits are documents, charts, reports, illustrations, etc., which are entered into evidence in an effort to persuade or convince the jury. Exhibits are important to a party's case because tangible, physical evidence may illustrate a point more vividly than oral testimony. An item becomes an exhibit and a part of the record after it is identified by a witness and there is testimony establishing its relevance to the issues in the case.

Exhibits Risk Management Tips:
  • Be aware that, in any malpractice lawsuit, the patient treatment records will be used as an exhibit. Patient treatment records that are introduced as exhibits are available for the jury to review during its deliberations. Often, the plaintiff's attorney will have a copy of the record obtained from the patient before you are notified of a suit. Many attorneys subsequently subpoena doctors' records simply to identify alterations to records the patient previously obtained. If any alterations are made, they will destroy your credibility and/or possibly render your case indefensible.
  • Good record keeping is a great defense in a lawsuit. In many lawsuits it will be your word against the patient's or the patient's family. In these situations, clear and concise treatment records are critical. However, if you review your records and find them lacking, do not, under any circumstance, add, delete, or change them in any way. Poor records will simply be classified as poor records, but altered records will completely destroy your credibility.
  • Sometimes at trial, portions of the record are reproduced on large display boards or projected via an overhead projector, and magnified several times their actual size, to illustrate a point. If you are ever tempted to alter a treatment record, even when you think there is legitimate information that should be added, just imagine the impact on a jury when the alteration is projected onto a six-foot screen in the courtroom!
  • Do not alter treatment records in any way. Altering a patient's record is a crime in many states!

WITNESSES

Questioning of witnesses may be by "direct examination" or "cross-examination." A lawyer does a direct examination of any witness aligned with the lawyer's client and case and independent witnesses he or she calls to testify. On direct examination the witness must testify without the help or suggestions of the examiner. On cross-examination a lawyer questions witnesses who are aligned with the opposing side, witnesses who are hostile and independent witnesses called by the opposing side. The cross-examiner has the power to exert more control over the testimony by suggesting the "correct" answer in the way the question is asked, leading the witness' testimony in a way not permissible on direct examination, and requiring the witness to be very specific in his or her answers.

EXPERT WITNESSES

The expert witness is a person with special education, training and experience in a particular subject or field, who possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or deducing correct conclusions. The trial court judge makes the determination as to whether a witness is qualified to testify as an expert. The party who wants the individual qualified as an expert introduces evidence of the individual's qualifications. Once the court has decided that a witness may testify as an expert the jury must decide, after listening to the expert's testimony, what weight should be given to the expert's opinion.

The expert witness testifies about the accepted professional standard of care, gives an opinion about whether the defendant met the standard, and whether the alleged breach of the standard of care was the proximate cause of the injury. The expert's opinion must be based on a reasonable medical certainty; there must be sound hypothesis for the opinion.

Witnesses/Expert Witnesses Risk Management Tips:
  • Prepare for your testimony with your defense lawyer. An inaccurate or unfortunate statement may do irreparable harm to a case.
  • The impression a witness makes will have an impact on the jury. Your appearance, mannerisms, patterns of speech, etc. may influence the jury and you should review these issues when preparing to testify.

CLOSING STATEMENTS

The closing statement is a summation of the evidence that has been presented and the relationship of the evidence to the issues in the case. The attorneys for each side will also summarize the evidence that they think the other side has failed to establish.

Contrary to the view created by movies and television, trials are not won by dramatic closing arguments. Thorough pretrial preparation and the effective presentation of witnesses and exhibits at trial win a lawsuit.

Closing Statements Risk Management Tip:
  • Effective risk management techniques, such as proper documentation, good communications with patients and colleagues, and meeting the standard of care, provide the basis for evidence that will support a defense in the event of a professional malpractice lawsuit.
Jury Instructions:

After closing arguments the judge gives instructions to the jury about the law and the procedures they should follow during deliberation. These instructions or "charge to the jury" are guidelines for the jury in applying the substantive law to the contentions of the parties and the evidence that was presented. Lawyers for each side can submit requests for charges to the jury. The judge evaluates these requests and decides whether to incorporate any of them into his or her instructions to the jury.

Verdict Form:

The verdict form is given to the jury to complete during their deliberations. The form asks the jury to answer specific questions that thereby resolve the basic issues of fact in the case.

Appeals:

After the trial court has rendered a judgment based on the jury verdict, a party to a lawsuit has the right to ask an appellate court to review whether the trial court committed an error that adversely affected the outcome of the case. An appeal is not a retrying of the case. A party cannot appeal just because it disagrees with or is disappointed with the outcome of the trial and thinks that it was unfair or unjustified.

In an appeal the appellant (party prosecuting an appeal) must specify the errors that the trial court made that the appellant believes caused the erroneous result. The appellate court reviews the trial court's record to decide if the alleged errors occurred and whether the errors may have prejudiced the outcome of the trial. If the appellate court finds prejudicial error it can vacate the trial court's ruling and order a new trial or, as a matter of law, order the entry of a different judgment.

No trial is perfect, errors will be made by all parties involved. An appeal only comes into play if the error(s) made likely had a significant influence on the outcome of the trial. Appeals are very costly and time-consuming. A party must carefully consider the potential for success on appeal before undertaking this course.

Resource List

Charles, Sara, and Kennedy, E. Defendant: A Psychiatrist on Trial for Medical Malpractice: An Episode in America's Hidden healthcare Crisis. New York: The Free Press, 1986.
Gutheil, T.G. & Appelbaum, P. S.: Clinical Handbook of Psychiatry and the Law. New York: McGraw-Hill, 1982; 2d edition, Baltimore, Williams and Wilkins, 1991; 3d edition, Baltimore: Lippincott, Williams and Wilkins, 2000.
Gutheil, TG. The Psychiatrist in Court: A Survival Guide. Washington, DC: American Psychiatric Press, 1998.
Gutheil, TG. The Psychiatrist as Expert Witness. Washington, DC: American Psychiatric Press, 1998.
Jacobs, DG and Brown, HN, eds. Suicide: Understanding and Responding: Harvard Medical School Perspectives. Madison, CT: International Universities Press, Inc., 1989.
Jacobs, DG. Depression Screening Procedure Manual. Belmont, MA: McLean Hospital, 1991.
Jacobs, DG, ed. Suicide and Clinical Practice. Washington, DC: American Psychiatric Press, Inc., 1992.
Jacobs, DG, ed. Harvard Medical School Guide to Suicide Assessment and Intervention. Harvard Medical Publications, 1998.
Simon, RI. Clinical Psychiatry and the Law, Second Edition. Washington, DC: American Psychiatric Press, 1992.
Simon, RI and Sadoff, RL. Psychiatric Malpractice: Cases and Comments for Clinicians. Washington, DC: American Psychiatric Press, 1992.
Simon, RI. Concise Guide to Psychiatry and Law for Clinicians, Second Edition. Washington, DC: American Psychiatric Press, 1998.
Simon, RI and Lifson, LE. The Mental Health Practitioner and The Law: A Comprehensive Handbook. Cambridge, MA: Harvard University Press, 1998.
Werth, B. Damages: One Family's Legal Struggles in the World of Medicine. New York: Simon & Schuster, 1998

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