As the Executive Director for KMRRRG I receive distressed calls from physicians after they learn they have been named as a defendant in a lawsuit. For many physicians this is the first time for them to become involved in any sort of litigation and just the thought of the allegations are troubling. Litigation can be overwhelming, and can take years to resolve. KMRRRG, along with our qualified and experienced defense counsel, will guide the insured through every phase of the litigation.
Summarized below are some initial steps in the litigation process to assist you in becoming a bit more familiar with what to expect should you become a named defendant in a medical malpractice lawsuit. BE SURE TO READ Next quarter, the newsletter will highlight the more detailed phase of litigation: Discovery & Experts
Phase One: Notice & Reporting to KMRRRG
According to Kentucky Law (cite here) a Defendant in a malpractice claim must be served. For some, this can be an unsettling experience when approached by an official in uniform and are asked to sign as receipt (Proof of Service) of the Civil Summons. The process is primarily managed in a formal manner so that a Named Defendant cannot avoid service and simply ignore that legal action has been filed against them. It is important to note that this is a critical time for the insured to contact KMRRRG and make notice of the suit. Upon receipt of the Civil Summons, each Defendant has only 20 days to provide a written defense or otherwise a default judgment may be taken against the Defendants. In other words, if the Defendant does not respond within the required 20 days, the plaintiff is automatically awarded the relief demanded. Take your reporting responsibility seriously and immediately report litigation to KMRRRG so that we may immediately respond on the insured's behalf.
Initial Steps Immediately Following Notice:
The number one thing an insured can do to assist in their defense is to cooperate and be collaborative in defending the claim. The insured will immediately be assigned defense counsel. KMRRRG works with the most experienced and qualified defense counsel in defending medical malpractice claims. KMRRRG resolves over 75% of all cases with dismissals. KMRRRG also has a record of 100% defense verdicts for cases that have gone to trial. However, there are cases that are settled due to the nature of the facts in the case. Each case is evaluated carefully and the appropriate management of the claim will generate successful resolution.
Shortly after being assigned defense counsel the insured will be contacted to assist with completing a thorough review of the allegations and a review of any and all documents relative to the litigated matter. In medical malpractice litigation the patient's medical record is the primary document utilized in the defense of the claim. Upon notice of the claim, KMRRRG will work through defense counsel to obtain certified copies of all of the claimant's medical records. It is imperative that the patient's chart be secured and not be altered in anyway. Admittedly, the increasing use of electronic health records has aided in the elimination of altered records. However, EHRs have also opened up another area of discovery for plaintiff lawyers. Plaintiff lawyers in some jurisdictions are already serving defendants with sophisticated questioning around metadata and their attempts to suggest that EHRs have hidden keystrokes or records changes. Regardless, it is never appropriate to alter a patient's record and if alterations are detected it is certain to lead to credibility issues during the defense of the case.
Meeting with Defense Counsel:
As noted previously, the insured defendant will be assigned defense counsel and the initial meetings with counsel are important. During this time, the insured will have an opportunity to review the patient's records with their lawyer, discuss the allegations and the overall litigation process. It is important for the insured to provide any and all information known, to their counsel, so that a thorough understanding of the case is established at the first meeting. This is the best time to discuss any facts about the case that you may recall that may not be detailed in the medical record. It is also important for the insured to discuss with counsel any email, text or personal notes that may exists regarding the patient's care. *Please note: it is highly recommended that providers never keep documentation outside of the patient's medical record and any electronic communication with a patient should be completed through the appropriate electronic health record system.
KMRRRG understands that being named in a lawsuit can generate a variety of responses and the insured may be tempted to discuss the case with colleagues. The insured may seek what others recall about the patient's care, or to simply seek opinions about the case. Insureds should refrain from discussing the case with anyone except their legal counsel. Remember, anyone that discusses the case may be called to give testimony and limiting discussions with only legal counsel will assist in management of the litigation.
