MALPRACTICE LITIGATION

Medical Malpractice Litigation-by Paul F. Schaaff Jr. (PaulS@OMSCLaw.com) A medical malpractice lawsuit, also known as a medical negligence claim, starts with the filing of a complaint in court. The complaint is usually vague but alleges a deviation from accepted standards of care. There are other causes of action recognized in New Jersey that a plaintiff may allege, including lack of informed consent and battery. (An informed consent allegation means the patient claims that the doctor did not properly explain the risks of the procedure or treatment, or did not adequately advise the patient about the reasonable alternatives to the treatment recommended. A battery claim involves a non-consensual touching, for example, the doctor does more surgery than to that which was agreed). Once the complaint is filed it is served with a summons by the plaintiff's lawyer on the defendant. The defendant alerts his or her insurance company to the service of the complaint and defense counsel is assigned. Defense counsel files an answer to the complaint denying the allegations and raises appropriate legal defenses.

By law, the plaintiff has sixty days from the filing of the defendant's answer to serve an Affidavit of Merit. The Affidavit of Merit is required unless the case is one where negligence is obvious. It must say that there is a reasonable likelihood that there has been a deviation from accepted standards. It must be authored by someone in the same specialty as the defendant. It does not have to define the specific conduct that was negligent. The court routinely grants plaintiffs additional time (another 60 days maximum) to serve an Affidavit of Merit. Most good plaintiff's attorneys obtain the Affidavit of Merit before filing the complaint so that they are not pressed to serve it within the time set by law. If an Affidavit of Merit is not timely served we will file a motion to dismiss the complaint. Unless something extraordinary has occurred the court will dismiss the complaint.

Presuming the appropriate Affidavit of Merit has been served, the next step in the litigation process is called discovery. Written questions (interrogatories) are exchanged and answered by each party. It is important when answering these questions to have reviewed all records relating to your care of the patient. The answers should be consistent with the records and should include any important information that was inadvertently omitted from the chart. Advise your defense counsel if something was inadvertently omitted from the records. Do not change the record in any way. Chart alteration can be devastating to your defense; can subject you to punitive damages; and can result in a Board of Medical Examiners' investigation.

Depositions are also part of the discovery process. Short of trial testimony your deposition is the most important thing you will do during discovery. It is imperative that you be prepared. You should know your records well; know the defense strategy; and have spent the time necessary such that you and defense counsel believe you are ready. The deposition can be an uncomfortable and taxing experience. You should be well rested. Depositions are often videotaped. As such, you should dress appropriately. Note that the plaintiff's lawyer can read and/or show all or part of your deposition at the trial. This is all the more reason to be prepared for your deposition.

Most times you will not know the specific criticism of care that the plaintiff's expert will make prior to your deposition. It is important; therefore, that you and your defense counsel explore the care carefully, and prepare for questioning regarding all aspects of the care, including that which you feel may be subject to scrutiny.

After party depositions occur, the lawyers exchange experts' reports. A plaintiff must prove both a deviation from accepted standards and proximate cause to win in court. A deviation is considered negligence. If negligence is found, the next question is whether the negligence caused harm. If the answer is yes, then the plaintiff is entitled to a monetary award. You may see experts' reports from doctors in different fields. There will be a physician in your specialty who states there was a deviation. Another specialty may comment on proximate cause. For example, if the claim is that a mammogram was misinterpreted, there will be a radiologist stating that there was negligence; and likely an oncologist who says that the delay in diagnosis harmed the patient. Depending on the nature of the damages claimed there may be economic and life care experts as well. We appreciate your input regarding the experts' opinions. Their reports will be sent to you and we will ask for your comments. We welcome your input regarding the experts to retain for your matter. Expert selection is made in conjunction with your insurance carrier.

The experts will usually have their depositions taken. We explore the opinions in more detail; and we attempt to elicit concessions helpful to the defense.

When discovery is complete, the matter is ready for trial. Whether the case goes to trial, or is ultimately settled, it is important to prepare the case as if it will try. That way, whether tried or not, the best outcome can be achieved.

We aggressively defend our clients. We believe that you deserve zealous representation. We communicate with you on a regular basis to outline the strengths and weaknesses in your matter. We are available to you to answer questions. We understand that getting sued is unpleasant and can be emotionally draining. We are your advocates. We will do our best to protect you. Contact us with your questions and concerns.