What to Expect from a Malpractice Lawsuit

Relevant legal terms

There are several words and phrases used during malpractice legal proceedings that you might not be familiar with, especially if this is the first legal case you’ve been involved in. Here are a few terms you should know:

Plaintiff: The person who is suing. In malpractice cases, this is usually a patient.

Defendant: The one who has been sued – for example, the OMS who provided care.

Litigation: All processes and events involved in a legal action.

Attorney/Lawyer/Counsel: A person or people retained to represent someone in a legal proceeding. Many malpractice insurance carriers will retain an attorney to provide legal representation to an insured OMS. 

Expert Witness: A qualified healthcare professional retained by either the plaintiff’s counsel or the defendant’s counsel/insurance carrier. These are compensated witnesses who give testimony related to the quality of the treatment the defendant provided and injuries claimed to have been caused by negligence. Expert witnesses are most often the same specialty as the defendant, but depending on the case details various expert witnesses with different credentials can be obtained.

Discovery: The process of the plaintiff’s and defendant’s respective counsel collecting information and evidence to support their claims and/or defenses. All documents and files that will be used in court must be shared with the opposing counsel and the court before trial. Discovery includes depositions, or sworn testimony, from both the plaintiff and the defendant.

Negligence: A violation of the standard of care, which could mean the failure to do something under a particular set of circumstances or the affirmative act of doing something that should not be done under a specific set of circumstances. Negligence entails the failure to abide by the relevant standards of care.

Standard of Care: What a reasonably prudent practitioner would or would not do under the same or similar circumstances.

Deposition: An interview, often filmed or recorded, of a witness, including but not limited to, the plaintiff or defendant, conducted by the opposing counsel. Questions asked during a deposition are answered under oath, are recorded by a stenographer, and are intended to help attorneys uncover more information about what occurred.

Damages: Malpractice cases involve compensatory damages, which are intended to compensate the plaintiff for their physical and/or emotional suffering due to personal injury.

Settlement: The voluntary resolution of a lawsuit before a jury verdict that typically involves a monetary payment from the defendant (usually their malpractice insurance carrier) based on an agreed amount of damages by both parties and their respective counsel.

Trial: The resolution of a lawsuit in a courtroom based on a full presentation of the evidence and arguments. Trials are typically done in front of a jury, which is a group of lay people who will ultimately decide the case, enter a verdict and, if necessary, determine the damages owed by the defendant if found negligent.  

Overview of the malpractice litigation process

1. Before facing the lawsuit

In the event of a lawsuit, there are a few things you can do to prepare.

• Gather and protect all of your documents/records about the treatment of the patient. Do not alter, change, amend, or destroy any of your records.

• Avoid speaking about the lawsuit to others. Only talk about the case with representatives from your insurance carrier and the lawyer(s) retained by your insurance carrier to represent you. 

• Gather a support system to lean on during what could be an emotional and frustrating time.

• Keep in mind that the litigation process is often lengthy, and a resolution can sometimes take upwards of a year and a half to two years, or even longer.

2. Reporting a lawsuit to your malpractice insurance carrier

In the event you are sued, or if a suit is formally threatened, you must report the lawsuit to your malpractice insurance carrier as soon as possible. Soon after, your carrier will contact you to gather information about the lawsuit and the event that it concerns.

3. Case review and assignment

Once reported, your case will be reviewed for coverage. Once confirmed, your case will be assigned to a claims consultant for handling. 

4. Initial contact with claims consultant

You will be contacted by a claims consultant from your insurance carrier who will go over the case with you, gather more information, and verify that your policy covers the lawsuit. Your claims consultant will also be able to answer any questions that you might have.

5. Attorney assignment

If needed, you will be assigned an attorney, who will represent you and your interests throughout the duration of the lawsuit.

6. Investigation and evaluation

Lawyers and claims consultants will conduct a thorough investigation of the case, aiming to uncover all relevant background information, including any conflicting or false information in the case against you. This process is done to build a defense to the allegations against the defendant.

During this discovery phase, the plaintiff and the defendant will likely be required to give a deposition. Also, during this time, attorneys will obtain records from the patient documenting any care the patient received before and after the event. 

Pay close attention in your initial meeting with your attorney during which you will talk about the legal process and your case specifically in detail. You will be a valuable member of your defense team. 

7. Resolution

The case will be resolved either by both sides reaching a settlement, dismissal, or by going to trial and receiving a jury verdict.

8. Closure

The outcome of the case depends on many factors, and your claims consultant and lawyer will keep you updated on all material developments. If the case is settled or a jury decides in favor of the plaintiff, the plaintiff will receive monetary damages. If a jury decides in favor of the defendant or if the case is dismissed before trial, the plaintiff is awarded no money.

If the case is resolved through settlement, the plaintiff will sign a release agreement, which will prevent them from taking further legal action regarding the event.

Navigate your career with confidence

Facing a malpractice lawsuit can feel daunting, but understanding the process is key for OMS to protect their practices. 

You don’t have to face a claim alone. With the industry’s best claims team and helpful risk management resources, MedPro Group can help you protect your good name. Looking to secure coverage? Start a quote or contact our team today.