The Birth and Life of a Claim: How it Begins and How it Progresses by Tamara LeFevre, JD Western Litigation, Inc.

This is the second in a series of articles that provide an overview of the litigation process from the psychological impact of litigation to the technical aspects of defending a claim or lawsuit.

What motivates a patient to assert a medical malpractice claim against the emergency room physician who treated him or her? The following are some of the most common reasons:

• Bad Outcome – The patient had a poor result due to the injury or illness itself, due to one of the known risk factors of a procedure, or due to less than optimal care in the emergency department.
  
• Service – The patient does not like the way the physician spoke to her or perceived that the physician was dismissive in some way. Behavior that is perceived by the patient to be arrogant or patronizing is a magnet for claims. Likewise, a long wait in the emergency department before being seen can cause a patient to have a negative and critical view of her treatment from the outset.
  
• Family Involvement – An angry or guilt-ridden family member may convince the patient that the patient was wronged or, if the patient has died, the family member may assert a claim to assuage his own feelings of anger, guilt, sadness, and helplessness. The claim becomes a vehicle for the grieving process of the family.

Initiation of a Claim

What constitutes a claim? A common definition of a claim is a written demand from a patient to a physician or hospital seeking compensation for damages the patient has allegedly incurred due to the physician’s negligence.

Some claims are foreseeable and start as “incidents.” An incident is any situation related to medical treatment provided by a physician which the physician or hospital believes may lead to a claim (because of a bad outcome or an angry patient, for example). Sometimes a patient will complain to the hospital risk manager by phone or in writing before actually asserting a claim. Other times a patient will send a “notice letter” directly to the physician and/or hospital, setting forth his alleged injury and damages.

Patients also sometimes file a complaint with the appropriate state board or department which oversees the professional regulation of physicians (commonly referred to as a board investigation). When that occurs, the board notifies the physician of the claim, and the physician should then report the situation immediately to his professional liability insurance carrier and the head of his group.

What Happens After a Claim is Made

Once a patient has asserted a claim against a physician and the physician reports it to his professional liability carrier, the following occurs:

The claim is investigated by the physician’s carrier and/or third party administrator (such as Western Litigation Specialists, Inc.), and then the claim is either denied or a settlement offer is made, depending upon the results of the investigation. The investigation typically involves, at a minimum, a review of the medical records by the carrier and third party administrator as well as by a non-treating physician in the role of a consulting expert, and discussion with the treating physician against whom the claim was asserted. If settlement is deemed necessary, negotiations may be done informally or by way of mediation.
Occasionally, depending on the type of claim made or in what state it is made (e.g. a 180 day notice claim in Ohio), the carrier and third party administrator will simply wait to see if the claimant proceeds to suit within the time frame allowed. If the claimant does not, the claim is barred from being pursued.
In all states, claims must be filed as a lawsuit within a specified time period (the statute of limitations), or else the claim cannot be pursued at all. Some states have mandatory pre-suit periods, where informal discovery is conducted and/or the matter must be presented to a panel of attorneys for a preliminary opinion to be issued before the claimant can file a lawsuit.
The physician’s carrier and/or third party administrator monitor all deadlines related to a claim and keep the physician apprised of any developments.

When a Claim Goes into Suit

Once a lawsuit is filed, the physician is served by the Court with a Summons and the Complaint (also referred to as Petition in some states). When a physician is served with a Complaint, he should immediately advise the head of his group and his professional liability insurance carrier and send them a copy of the Complaint. If the carrier utilizes a third party administrator, the carrier will refer the matter to the third party administrator, who will immediately retain local counsel in the venue where the suit has been filed to represent the physician named in the suit.

The physician can expect to be contacted by the carrier, third party administrator and/or counsel retained for the physician within a short period of time after the physician has forwarded a copy of the Complaint to the carrier.

All states have a procedural rule which sets forth the number of days after service upon the physician by which an Answer must be filed on behalf of the physician. The physician’s counsel prepares and files the Answer. At or around the same time, the physician’s counsel will meet with the physician to discuss the medical records and the physician’s recollection of the patient and treatment provided. Written discovery (i.e. written questions and requests for documents) will be exchanged between the parties for responses to be prepared. This may happen at the same time the suit is filed or several months later. Later, usually a number of months after the filing of the suit, the physician will be asked to give her deposition, and it is usually after the plaintiff has already given his deposition. In general, lawsuits take anywhere from one year to five years or more to reach resolution, either by settlement or verdict. The average life span of a lawsuit is two to three years.

Prior to trial, most states require some type of alternative dispute resolution (referred to as “ADR”) in the form of a settlement conference with the judge or panel review or mediation. The physician is typically required or at least invited to attend personally, and the ADR process may last anywhere from two hours to ten hours.

The actual trial may last anywhere from four days to six weeks, depending on the complexity of the case and the number of defendants. The average length of trial for a medical malpractice case is probably two weeks. The physician is expected to personally attend the trial.

Once a verdict is rendered by the judge or the jury, either the plaintiff or the defendant may appeal the decision if they wish. They must do so within a certain period of time (typically around thirty days), which varies depending on the state. An appeal can be ruled upon within several months, but it can also drag on for years.

Conclusion

The life of a claim varies widely, depending on the type of claim, whether the claimant is represented by counsel, what state the claim has been brought in, and how many health care providers have been put on notice of the claim. Sometimes physicians’ attorneys, who have been handling medical malpractice claims for years, forget that the “basics” of how a claim proceeds may be completely foreign to the physician, particularly if the physician is going through it for the first time. A physician who is facing a claim should not hesitate to ask his carrier, third party administrator, or counsel about the process.

Our series on the fundamentals of litigation continues in the next issue with “Evaluation of Medical Malpractice Claims.”

Tamara LeFevre is an attorney of 17 years in Houston, Texas. She represented physicians in medical malpractice suits until eight years ago, when she joined Western Litigation Specialists, Inc. (WLSI), a third party administrator that provides claims management services to EPIC and other insurers as well as self- insured health care providers. For additional information, go to www.wlsi.com.