A lawsuit is typically started when a physician is served with process -- a Complaint and a Summons. When you receive these items, you should immediately contact your professional liability carrier and forward to its representative of copy of everything served upon you.

Since April 1, 1994, the provisions of the new tort reform statutes enacted in 1993 provide for a 180-day investigation period before a medical malpractice lawsuit may be filed. A physician will typically receive notice of the claim by letter, most often on an attorney's stationery. Again, you should immediately contact your professional liability carrier and provide its representative with a copy of everything you have received. Caution -- the Notice may look like an ordinary letter. During the 180-day investigation period, the claim will be handled by a representative of your professional liability carrier; an attorney may be assigned at that point, or may not be assigned until a Complaint is filed.

Selection of defense attorney

Your professional liability carrier has the right and the duty to select an attorney who will defend the claim against you. The fees charged by the attorney are paid by your carrier; that is one of the benefits you have paid for with your premium.

You have the option of requesting that your carrier retain a particular attorney to defend you, so long as the attorney is one who is on the list of attorneys approved in advance by your professional liability carrier. (The number of attorneys so approved in any geographic area is quite limited, however.) The physician's requested choice among the approved attorneys is usually followed by the carrier.

Pleadings are the papers which are filed with the Court to set forth the issues and the parties' respective positions on these issues. The typical pleadings are:

Early planning and strategy

It is vital to the defense of a professional liability case that the defendant, his attorney, and the claim representative from his professional liability insurer work together to learn about the case, including the medical and legal issues raised by the claim, and develop a plan of action to defend against the claim. The steps which will be taken typically include:

The attorney-client privilege acts much like the physician-patient privilege. Information provided by the client to his attorney, and by the attorney to the client, is privileged and may not be disclosed to others. Both the attorney and the client must safeguard that confidentiality, however, since the law provides that a disclosure to an outside person waives the privilege and makes the information fully discoverable by an opposing party. Thus, the physician must take the following steps during the course of the litigation:

The persons who are within the scope of confidentiality and protected by the privilege include the physician, the attorney, and the claims representative handling the case for the professional liability carrier. Others may include partners or shareholders in your professional corporation, if it is also a party. Those are the only people to whom confidential and sensitive information may be disclosed.

Discovery is the term used for the formal exchange of information among the parties to a lawsuit. This information is requested in various forms of written requests, including:

These are the written discovery requests most commonly sent to defendants.

This is a request directed to the plaintiff, and is the means by which copies of medical records may be secured. After the submission of the request, the plaintiff has a period of 28 days to respond. The response will include one or more of the following:

After the authorization is received, it is sent to treating physicians or hospitals with a request for copies of the records. This may take a few weeks. Sometimes, the provider, typically a hospital, will require a more detailed form of authorization, and this will have to be sent to the plaintiff's attorney to have it signed by his client. It thus sometimes occurs that copies of medical records may not be received by your attorney for a few months after the Request for Production of Medical Information is first submitted to the plaintiff.

The method of discovery most familiar to physicians is the deposition. This is a session in which a witness provides testimony in a question and answer format, under oath, similar to testimony provided in open court during a hearing or a trial. There are some important differences:

All attorneys for the parties have the right to appear and to question the witness. The questions and answers are recorded by a court reporter, who will then transcribe them and provide a copy of the transcript to all attorneys who order it from him.

You, as a party to the action, have the right to be present for any deposition which is taken in your case. Often, your attorney will suggest that you be present, to assist him as the questioning takes place.

A motion is a request to the Court, usually made in writing, for an order to require a party to a lawsuit to take certain action or to provide certain information. On occasion, a motion will ask for similar relief as to a non-party.

Mediation is a special pretrial procedure which is used in Michigan. A few other states have somewhat similar pretrial procedures, but the details of each are different.

A mediation hearing is a process in which a panel of three attorneys will receive written submissions from the attorneys for the parties (called mediation summaries or mediation briefs), will hear an oral presentation on the case and the issues it presents, will ask questions of the attorneys, and then will provide an evaluation of the case as to each defendant. This evaluation is the figure which the panel believes represents a reasonable settlement value of the case. It is not binding on the parties, and it thus may be considered to be a recommendation as to a settlement value. It may be rejected by either the plaintiff or the defendant. If it is accepted by both sides, the case is settled for that figure.

Although a mediation evaluation is not binding, there are certain consequences attendant upon a "unreasonable" rejection. A party which rejects the evaluation may have to pay to the opposing party certain mediation sanctions, including the actual costs to the opposing party of having to proceed to trial. These actual costs include attorneys' fees, and this often adds up to a substantial amount of money. The sanctions apply if the rejecting party does not improve his position by more than 10% of the mediation evaluation at the time of trial. Thus, as to a defendant, a rejection of a mediation evaluation in the amount of $50,000 is considered unreasonable if the ultimate verdict, including costs and prejudgment interest, is $45,000 or higher. If the plaintiff rejected the same figure, he would have to recover a gross verdict, including costs and prejudgment interest, of more than $50,000 to avoid the imposition of sanctions.

Expert witnesses are witnesses who are found by the court to have a particular expertise in a field of training or discipline, and they are allowed to testify if the court finds that their testimony will be helpful to the jury in considering the issues in the case. In a professional liability case, expert testimony is typically required on both sides, except in those rare situations in which a lay jury could find a deviation from the standard of care without the use of expert testimony. An example would be leaving a surgical implement within the patient's body after an operation.

Expert witnesses differ from lay witnesses, in that they are permitted to offer specialized information which is known to practitioners in their fields, and to offer opinions in areas within their area of expertise. Commonly, an expert is offered to establish, by opinion testimony, what the standard of practice required of a physician in a given situation and whether the actions of the physician did or did not comply with that standard.

It is not necessary that an "expert" have special qualifications or expertise, beyond those which the ordinary practitioner in his field would have. It is not necessary that an expert witness be regarded by other physicians as an "expert" in a particular area. It is simply necessary that the witness be shown to have the minimum qualifications to establish familiarity with the specialty or issue in question. Under the law, any practicing general surgeon may be qualified as an expert witness in the field of general surgery, no matter how ordinary or even mediocre a practitioner he may be. An expert witness need not be board-certified in a specialty field, if he in fact practices that specialty as a regular part of his practice.

Previously, Michigan courts were very permissive on qualifying physicians to serve as expert witnesses in professional liability cases. We thus occasionally saw ludicrous examples of family physicians testifying against orthopedic surgeons, simply by convincing the court that they were familiar with the standards of practice applicable to the field of orthopedic surgery! That standard was tightened in 1986, and further tightened in 1993.

Under the 1986 rule, applicable to cases involving treatment which took place between October 1, 1986 and March 31, 1993, a proposed expert witness must now be shown to be one who devotes a significant amount of his time to either the practice or the teaching of the specialty field in question, or in another specialty field which is "related and relevant" to the medical issue in question. Thus, depending on the circumstances of the case, either an emergency specialist or an orthopedic surgeon may be found qualified under the 1986 rule to provide testimony on the question of how a fracture should be treated by an emergency physician.

Under the 1993 rule, applicable to cases involving treatment which took place after April 1, 1994, the proposed expert:

These rules apply both to physicians who serve as experts for the plaintiff and to those who testify in support of the physician's position.

The majority of litigated cases are settled before they reach the point at which they are ready for trial. Over 95% of cases which are not dismissed (voluntarily or by order of the court) are resolved by the payment of some amount of money to the plaintiff. Depending on the severity of the injury, a settlement for a fairly limited amount of money can be considered a favorable outcome, though many physicians find that concept difficult to accept.

Although most professional liability cases are also settled in advance of trial, the proportion is much smaller. Our current experience is that about 80-85% of the cases we handle are dismissed or settled in advance of trial, which means that about 15-20% of our cases go to trial. The reason is that professional liability cases are handled somewhat differently. Most policies of professional liability insurance provide a "consent clause", under which a case cannot be settled without the specific agreement of the insured. Further, most companies insuring physicians follow a policy under which cases are not settled for "nuisance value" (a cheap settlement of a non-meritorious case) if there has been no criticism of the defendant physician's actions by a reviewing expert witness or the company's claims committee.

Physicians take lawsuits involving their professional practice very seriously, and many do not simply dismiss them as a cost of doing business, as do product manufacturers and other corporate defendants. The result is that more professional liability cases are defended as a matter of principle than are other types of cases.

Typically, the professional liability insurance policy provides a "per-occurrence" policy limit, which represents the maximum that the insurer will pay on a single claim involving a treatment or a course of treatment, and an "aggregate" limit, which represents the maximum that it will pay for all claims during the policy year.

Since a plaintiff's recovery will include items beyond a simple award of compensatory damages, you should be aware of what is and what is not covered under your policy.

Virtually all policies will specifically exclude coverage for intentional acts of wrongdoing. A common example of such acts in the professional liability context involves claims for sexual exploitation of patients by physicians.

In the vast majority of cases, both the physician and his insurance company have identical interests. In those rare situations where their interests diverge, the physician needs to be aware of the role the attorney must play under law.

The trial of a case before a jury is the culmination of all of the efforts of the defendant and his attorney over the many months of the pretrial discovery process. This is the opportunity for all parties to present their cases to a jury and to have the factual and medical issues resolved.

During a trial, the judge is to decide questions of law (including admissibility of evidence), and the jury is to decide all issues of fact. The issues of what the standard of care was, whether it was breached, and what relationship the breach had to the damages claimed are all considered matters of fact. They are, however, technical issues of medical opinion, and thus the courts require that they be proven with the aid of expert testimony.

There are several stages of a trial, and they can be only briefly described here.

Jury selection is the first process, under which the Court and the attorneys will have an opportunity to question the prospective members of the jury, in order to evaluate them as potential judges of the facts and the medical issues.

Opening statements are given by the attorneys, to provide a description of their respective positions and the testimony and evidence which will be offered to support those positions.

Plaintiff's proofs - The plaintiff's witnesses are called and documentary evidence is introduced. This will include evidence (offered through the testimony of expert witnesses) of the standard of care, the breach of the standard of care, the way in which the breach caused damages, and the extent of damages alleged to have been suffered as a result of the claimed negligence. Each of these elements must be proven by the plaintiff by a preponderance of the evidence standard -- i.e., a standard of medical probability.

Defendant's proofs - The defendant then has the same chance to call witnesses and offer documentary and other evidence. This may include evidence (also offered through the testimony of expert witnesses) of the standard of care, compliance with the standard of care, the lack of a causal relationship between the treatment at issue and the damages claimed, or the extent of the damages.

Closing arguments give each attorney the chance to summarize the evidence and to make arguments on the evidence and how it bears on the issues the case presents.

Jury instructions are a series of statements on the jury's function and on the law the jury is to apply to the evidence it has heard.

Jury deliberations and verdict - The members of the jury then have the chance to discuss the case among themselves and to arrive at their decision on the issues.

A verdict, if in favor of the plaintiff, is rendered for an amount of money intended to provide compensation to the plaintiff for the injury sustained. The verdict is most often provided in detailed form, separating past and future damages as well as economic and non-economic damages. If the jury has found that there was negligence on the part of the plaintiff which also contributed to the injury, or if there are multiple defendants whose negligence may have contributed to the injuries in different degrees, the degrees of such negligence are specified.

The Court has the opportunity to adjust the figure after the verdict, in order to: