While even the mention of “medical malpractice” to a health care provider can elicit a negative visceral response, the unfortunate truth is that about 40 percent of physicians will be named as a defendant in a lawsuit, according to a survey of nearly 1,400 physicians by MedScape. (See link here for more info on that.) More than half of the lawsuits reported were related to failure to diagnose or failure to treat. And not surprisingly, most physicians categorized the experience as upsetting, very bad, or horrible.
Having your professional competency called into question is terribly upsetting, but for many physicians, a big part of the anxiety of a medical malpractice lawsuit is fear of the unknown. This particular blog entry is intended to provide a general overview of the legal process, so that if you are ever faced with a “health care liability claim” (as they are called in Texas), you will at least have a good understanding of what to expect.
Chapter 74 of the Texas Civil Practices & Remedies Code, often referred to as the “Medical Liability Act” – or “tort reform” – is the “brains” of the operation and dictates the procedural and substantive rules of a health care liability claim in Texas.
It covers a wide range of topics, from how legal complaints are filed, to liability rules in emergency care, to who qualifies as an expert witness. And while the purpose of this blog entry isn’t a crash course on Texas law, it’s helpful for physicians to know the source of the rules of a med mal lawsuit. Ultimately, while legal matters play a role in the lawsuit, the primary driving force of the lawsuit remains the medicine – whether the care provided met the applicable standard of care.
Now on to the anatomy lesson: A lawsuit can essentially be broken down into several component parts, starting with initiation of the lawsuit.
This might seem obvious, but In order to bring a lawsuit against a physician, a physician-patient relationship must exist. That comes in many shapes and sizes – you might be the patient’s long-time personal care provider, consulted on him or her for five minutes in the ED, or maybe just read her CT scan from a remote location.
All of those scenarios can establish a physician-patient relationship. As to timing for a lawsuit, in Texas, except for very limited exceptions, there is a strict two-year statute of limitations. But if the plaintiff serves a potential defendant with a “notice of claim letter” along with a statutorily compliant authorization for release of medical records before the two-year statute of limitations expires, that time period is extended by 75 days. The plaintiff must then wait 60 days after the notice letter is served to file his or her lawsuit, to allow the physician (and the liability carrier) time to evaluate the validity of the claim.
Assuming the petition (the legal document outlining the claims of the lawsuit) is filed in a timely manner and the physician is properly served, the physician must then timely file his answer (the legal document responding to the allegations) to the petition.
Texas is a “general denial” state, which means that all the defendant has to file is an answer generally denying all of the allegations in the petition. Once the defendant has answered, the plaintiff then has 120 days from the date of the answer to support the claims of the suit, i.e., the breach of the standard of care, and causation.
The defendant then has the opportunity to object to the qualifications of the expert or the substance of the claims – again, all dictated per Chapter 74, and the case law interpreting the statute. A handful of cases will get dismissed at this stage of the game. If the lawsuit survives this stage, the case proceeds to discovery.
A lawsuit’s central nervous system
The discovery phase of the lawsuit is like the central nervous system of the body – it’s where all of the data is gathered, reviewed, and analyzed. The discovery process can be divided into two stages: written discovery and deposition discovery. Written discovery consists of the parties serving each other written requests for information.
There is the statutorily derived “Requests for Disclosure,” which is a standard set of questions established by statute and typically always served on opposing parties. The questions and answers are very straightforward and are not subject to objection. Two other equally common types of discovery include “Interrogatories”: typically, a set of 25 or fewer questions to the opposing side regarding issues related to the case, and “Requests for Production of Documents,” which asks the party to produce certain documents related to the case. Another type of written discovery, which is not used as often, is “Requests for Admissions.” This is a set of requests asking the opposing party to admit or deny certain factual elements of the case, but once admitted, the fact is deemed “true” for the lawsuit, no matter what else occurs or what new information is learned.
If a party believes that a certain discovery request is improper or out of bounds, he or she can object to the interrogatory or request on a number of grounds, and seek a ruling from the court. Your input will be needed in responding to written discovery requests and gathering documents to produce to the opposing side. In fact, without your assistance, a lawyer does not have the information to provide substantive responses to written discovery.
Once written discovery is completed, the parties will then move on to taking depositions from the parties. Most often, the plaintiff(s) will be deposed first by the physician’s attorney, and then the physician will be deposed by the plaintiff’s attorney. You will spend time with your attorney preparing for your deposition before it takes place.
Also, any co-defendants and other relevant fact witnesses, such as the plaintiff’s family members or other treating health care providers, may also be deposed. The party and fact witness deposition phase of a case can take several weeks, or even several months, to complete before moving onto the next phase of the case: expert discovery.
In my next blog entry, we’ll discuss the role experts, mediation, and other factors play into your case, leading up to and through trial.
Kimberly K. Bocell, a former registered nurse, is a shareholder at Dallas’ Chamblee, Ryan, Kershaw & Anderson, where she represents healthcare providers in all facets of health law.