Episode 073: Litigation 101

Speaker 1: You are listening to Your Practice Made Perfect; support, protection, and advice for practicing medical professionals. Brought to you by SVMIC.

Brian: Hello, thanks for joining us, my name is Brian Fortenberry. On today's podcast, we will be talking about litigation, and some basics of litigation 101 with our guests, J and Katy. Thanks, guys for being here with me again today.

Katy: Thanks for having me.

J. Baugh: Thank you Brian.

Brian: Well, before we get started, for those that may not have had the opportunity to hear us have these discussions in the past, tell us a little bit about yourselves. About your background, your time here at SVMIC. Katy we'll start with you first.

Katy: All right, well I'm a lawyer in the claims department. I previously practiced privately in Tennessee, I'm a licensed Tennessee attorney. I've been at SVMIC now for 12, 13 years. It's been a little bit.

Brian: You're adding in your mind as you go, right.

Katy: Yes.

Brian: You're having to add based on life events, right?

Katy: Yes. That's right. That's right.

Brian: Totally understand that. J, tell us a little bit about yourself.

J. Baugh: Well, I am also an attorney in the claims department. I have been at State Volunteer for the last 18 years managing claims throughout that time.

Brian: Well, thank you both for being here today. Today we're going to be discussing the basics of the litigation process, and that can be somewhat complex. Lawsuits are probably every physician’s worst nightmare if we're really honest. But, the reality is that most every physician is going to be involved in a lawsuit during the course of their career, right?

Katy: Yes. I think probably, at least once, every physician is going to be served with a lawsuit. Some specialties more than once, and so we thought it would be helpful to just kind of discuss what goes into a lawsuit. Brian, I think you're right, nightmare is something that I hear, J, you probably hear it a lot as well. Physicians are very fearful of lawsuits.

J. Baugh: Yes, it can be very devastating to a physician, because it's very much outside what they're used to doing. They're ready to help patients and treat patients, and so when they get pulled into the legal arena it's very scary for them.

Brian: Nobody that goes into medicine signs up to, "I can't wait to be in court."

J. Baugh: That's right.

Katy: Right.

Brian: Nobody does that. Everybody goes in there to take care of people. This is one of those scary things, and hopefully today we're going to be able to shed some light on that. We're going to discuss the general format of lawsuits, the life of how a lawsuit will work. 

It's going to be important to note though that while all these lawsuits follow a general prescribed path, each individual case is going to be, there's going to be differences, right? But, today we can kind of hit a 30,000 foot level of what it looks like. With that being said, let's start with pre-litigation activity, because that's an important part, right?

J. Baugh: That's right. There are certain things that can happen prior to the filing of a lawsuit. One of those things could be in some states, plaintiffs are required to provide what's called a pre-suit notification of the claim. If you're practicing in one of those states, you may receive a certified letter that tells you about a claim possibly coming down the road. 

Tennessee is one of those states in which a pre-suit notification is required. Tennessee requires that that letter be sent at least 60 days prior to the filing of the lawsuit. If you're a physician, healthcare provider, who's practicing in Tennessee, you may receive a certified letter notifying you that a claim may be coming down the road. Now, it's our experience that in the past 10 years or so that this law has been in effect, that about half of these letters will turn into a lawsuit and about half of the letters will be the last that you'll ever hear of it.

Brian: So J, you're saying that just because you receive a letter of intent, that doesn't necessarily mean you're going to end up in court. Because, I think a lot of people think, "I got a letter, I'm getting sued, this is going to go to court."

J. Baugh: That's right. Sometimes when physicians report the letter they think that is the lawsuit.

Brian: I got you.

J. Baugh: They will report it that way, and sometimes the letters will say, "You are going to be named in a lawsuit." But, that doesn't necessarily mean you're going to be named in a lawsuit later.

Katy: So don't panic if you receive a letter. But, what you do need to do is call our offices, ask to speak with the claims department. You'll be connected with J or myself or one of our peers in our department and we can discuss the situation with you, discuss the letter. Talk through it.

Brian: We have a number of qualified attorneys working here at SVMIC. What's the total number now?

J. Baugh: I think we have 17.

Katy: I think that's right.

Brian: 17?

J. Baugh: Yes.

Brian: Okay.

J. Baugh: Counting supervisory staff and our Memphis office combined, it's 17 claims attorneys.

Brian: Perfect.

J. Baugh: Now, I might add here that if you're practicing in a state other than Tennessee, you may not receive a pre-suit notification. It's not required in every state. So it could be that the first notification you get of a lawsuit is actually being served with the lawsuit itself. So if you're practicing in a state other than Tennessee you may not receive that notification.

Brian: I know people that might get a letter and then sit on the letter for a while to see if it develops into anything. I'm guessing that the best advice would be, as soon as you receive the letter, contact you, is that correct? Not sit on the letter.

Katy: That's correct. Also, it's a good time to mention that you can contact us any time you have a concern about a patient even if you don't get a letter. We're happy to speak with you about any concerns or concerning situations you may have.

J. Baugh: That's right. I've told physicians in the past, if you're wondering whether you should call us or not, go ahead and call us. There's no reason not to. Just pick up the phone and tell us what's going on and we can discuss the situation with you and that time. If we feel that it's necessary to retain an attorney for you, we can do that. Sometimes we do that when a doctor gets a pre-suit notification, and sometimes we don't. Just depending on the particular facts of the situation. So, if you're wondering whether to call us or not, just go ahead and call us.

Brian: We've kind of touched now on the pre-litigation activities. So next, let's talk a little bit about phase one of actual litigation. Say that 50% that you were talking about, J, comes true, this means that the litigation begins. Katy, can you expand upon that for us a little more as we start this litigation phase?

Katy: Sure. What happens after a lawsuit is filed by the plaintiff's lawyer, is it has to be served on the defendants. The lawsuit itself is called a complaint. That will be at the top of the page. There will be a listing of the parties and then complaint. Some physicians don't appreciate that that's what a lawsuit is. That's what it's called, and you will also be served not only with a complaint, but with a summons. Service can occur a number of ways. The old fashioned way, the sheriff's deputy can walk up in the middle of your day and present you an envelope and say, "You've been served." Another, just a private process server could bring the suit papers to you.

Or, it could also come to you by certified mail. An important point to mention here, if you're a physician who practices in an office and you have office staff, make sure your office staff knows how to handle the receipt of certified mail type documents. If you have a certain office staff member who's designated as your representative, who can sign for these types of documents, then certainly that person should go ahead and do so. You should just make sure your office staff knows not to automatically sign for something just because they've received it. Instead, the office member could direct the process server or take the envelope to the physician, him or herself, so they can handle it appropriately.

J. Baugh: Yeah, and either way you want to do that is fine, it's just important that you communicate to your staff what it is that you want done. Do you want them to be the ones to receive service and process for you, or do you prefer to be personally served? Make sure that everyone on your staff understands what your preference is.

Katy: It's important just to remember, not only because the lawsuits been filed, but just because there's a time window. You need to report the service of the lawsuit to us so that your lawyer can very quickly and within the time that's allowed by the court rules respond to the complaint on your behalf. It's a 20 or 30 day period of filing the responsive pleading, so you need to make sure to contact us as soon as you receive the suit papers.

Brian: It really all becomes time-sensitive once you get actually served a summons then?

J. Baugh: That's right. If you report it to us within the first two or three days of having been served, that gives us time to retain an attorney to represent you, and for that attorney to file the proper papers to respond to that complaint. We've had situations where a doctor might sit on a complaint for two or three weeks, and then we start to run out of time. That causes us to panic a little bit, so if you can timely report these complaints to us, that gives everyone enough time to do what's necessary in order to protect your interests. Now, there is one thing that I wanted to mention about the complaint itself, and that is they're not always written in a factually accurate manner.

Brian: Okay.

J. Baugh: I've had doctors call me before and say, "I've just read this complaint and they've got it all wrong."

Katy: I have as well.

J. Baugh: Yeah, so you need to remember that what's happening here is you're seeing the plaintiffs version of what happened. You're reading the way the plaintiff remembered what was said and what was done, and you will always have an opportunity to respond to that. Your lawyer will file with the court a pleading that's called an answer. You will be able to admit or deny anything and everything that's mentioned in the complaint, so don't get too worked up when you read a complaint because it's going to be their spin on what happened with the case.

Also remember that a complaint is going to have some legal phrases, and it's going to have some legalese that you might not know or understand. It might be infuriating when you read it. You're going to see things like, "A deviation from the standard of care." You're going to see, "The defendant acted in a negligent manner, and that the defendants' actions caused injuries to the plaintiff." Again, that's all legal terminology that has to be in the complaint.

So don't get too worked up over the way the complaint reads, whether it's from a factual standpoint or a legal standpoint, because again you're going to have your opportunity, your lawyer is going to file an answer that the two of you will work with together in order to respond to everything that's in the complaint.

Brian: It sounds like, you know, you always think, "Oh well, I'll have my day in court to refute this." This is an answer that refutes that prior to ever setting foot inside of a courtroom, right?

J. Baugh: That's right. That will happen within 30 days of your being served with a complaint, and you can go ahead and get your version of the facts in the court record before you even get into the courtroom.

Katy: J, you've been talking a lot about lawyers, and I think it's important to discuss that now. What will happen after a physician who has been served with a lawsuit calls State Volunteer, and speaks with one of the claims attorneys on our staff, we will go ahead and hire a defense counsel to represent the physician. This is a really important relationship that will develop between the physician and the lawyer. You're going to have to spend a lot of time with this person, though not consistently, there are kinds of peaks and valleys of time where you're involved ... you'll be really kind of heavy certainly at the start of the lawsuit.

Preparing the answer, educating your lawyer on the medical situation, your care of the patient. But then, there will be periods where your lawyer doesn't demand, or you may not even hear from your lawyer for long stretches of time. Doesn't demand a whole lot of your time, but just wanted to point out that your lawyer is going to ask you to carve out some time to meet and discuss the case. That's a very vital part of defending our ability to defend the physicians' interests in the lawsuit. So, work closely with your lawyer and give him that time.

Brian: Well, thank you guys for laying out that first important part of litigation. I know it can be confusing, there's a lot of confusing parts to this, and I'm sure many of our listeners deal with that as well. So from my understanding once we get past this, then it moves into this next phase of litigation often referred to I guess as discovery, right J? What's that about.

J. Baugh: That's right. Once the complaint has been filed, once the answer has been filed, then the next phase is discovery. Discovery is actually broken into two separate phases, one of which is written discovery, where the lawyers will exchange questions and answers that are in writing. They're called interrogatories, they may be called requests for production of documents, they may be called requests for admissions. Sometimes you'll get those documents along with the summons and complaints, sometimes you'll get those later. But, anytime you get those be sure to let either State Volunteer or your defense attorney know that you've received these written questions.

The idea there is discovery. It's to try to discover information and documents that are relevant to the lawsuit. Your lawyer will prepare the answers for that written discovery, but the lawyer will certainly need your help in being able to do that, because your medical expertise will often be required in order to answer those questions. That's written discovery.

Then, the next part of discovery would be depositions. Depositions are a very key development in the litigation process. It is out of court testimony that's given under oath. A deposition is usually done in a conference room, maybe at a lawyers office, maybe at a hospital, maybe in your office. It's rarely done in a courtroom. But, it's just as important as testimony that you would give in court because it is given under oath. There's going to be a court reporter who's going to be present to transcribe what's said, and we're seeing more and more now that they're videotaped.

So what you say, the transcription can be used in court, a clip of a video of your deposition can be played during the trial, so it's very important that you're all in when it comes to your deposition and being prepared for it. Listening to what your defense attorney is telling you in order to get prepared for that deposition.

Brian: Would it be safe to say that you might not be able to win a case in a deposition, but you could definitely lose one in a deposition?

J. Baugh: That is absolutely true, and we have situations where doctors think, "Okay, once I give my deposition, everyone's going to understand how this case should proceed." That's not the case. You're not going to win it there, but if you're not listening to your defense attorney and you're not preparing and you're not all in, you really could lose in the deposition, because it is sworn testimony and it can be played against you in court. So you're right, you can't win a case in a deposition, but you can certainly lose it.

Brian: I have heard instances before where people went into a deposition and the deposition went so bad that they said, "Look, we can't really even proceed going forward now because this isn't going to work." So, they end up having to take other measures right, in the case, just because the deposition went so bad.

J. Baugh: That's true. You might have a situation where you feel like you can't defend the carer, and so you have to enter into settlement negotiations. You might have a situation where a doctor points the finger at another healthcare provider and that makes the case even more complicated than it was to begin with, so depositions are very important. So we really advise that you listen to your defense attorney in getting prepared for a deposition.

Now, there are different people who are involved in a lawsuit that will give depositions. There's an order to that. Usually the parties are deposed first, then fact witnesses are deposed second, and then expert witnesses are deposed last. The plaintiff is usually the one that has to give the first deposition because the burden of proof is on the plaintiff, and it's really important that the defendant attend that deposition. It's not only significant for you to be there so that you can face the person who's testifying against you, but it also provides a great resource for you to understand how this process works without you having the pressure of having to give deposition testimony yourself.

It might be the first time you ever meet the plaintiff's lawyer, it might be the first time you meet the lawyers who are representing co-defendants. It's really vital for you to attend the deposition of the plaintiff because you see the process and you meet the people involved without having that pressure on you. Plus, your being there might temper the plaintiff's deposition a little bit.

Brian: Some people might not know these depositions, they're not, "sterile environments," where it's just a one-on-one conversation between an attorney and the person that is being deposed. Like you said, other people can be in the room. The accusers, or whoever can be 

sitting there as well, correct?

Katy: It's a room full of people.

Brian: That can really change how things go?

Katy: It's an artificial type conversation, and it's not question and answers. Yes, that's how a deposition is structured, but it's not like a normal discussion. J makes a great point, it's a wonderful opportunity for a physician who's a defendant in a lawsuit, especially a first lawsuit, to go and sit through the plaintiff's deposition and watch how it's conducted. So, when it's your turn, which will happen shortly thereafter, sometimes the next day even.

J. Baugh: That's right.

Katy: You will be more prepared for what is an uncomfortable situation, but preparation is the key. This is one of those peaks. We talked about peaks and valleys of your activity and involvement with your defense attorney. Your defense attorney will have you very well prepared for your deposition, but it's going to take some time. There are probably going to be multiple preparation sessions, probably a mock deposition. So just be prepared, be willing with your time, and realize that it will help you not to lose your case. It will further the defensibility of your lawsuit.

We actually have a wonderful resource, and one of our earlier podcasts is on this topic. One of our defense attorneys who defends physicians, defends our insured for us, her name is Wendy Longmire. She gave a great podcast episode about just this topic, so I would definitely encourage anyone who's interested to listen to that episode as well.

J. Baugh: Then, once the parties are deposed and the fact witnesses are deposed, and what I mean by fact witnesses are family and friends of the plaintiff. Maybe nurses and administrative staff for the defense side. Once the parties are deposed and the fact witnesses are deposed, then the last set of depositions would be expert witnesses. That's required in a medical malpractice case. And so the lawyers will then retain physicians who will testify as to whether the doctor acted within the standard of care or whether he didn't.

There will be plaintiffs who will say the defendant did not act within the standard of care, and then the defense attorney will hire experts that will say the defendant did act within the standard of care. So that would be the last set of depositions that would be taken.

Brian: Okay, so now discovery has been completed, so it's time to try and resolve the lawsuit. Is that correct? So, this next phase of litigation is called resolution. What happens during resolution Katy?

Katy: Well, there are a lot of different ways a lawsuit can be resolved. Sometimes you can have a plaintiff dismiss a lawsuit. In some states that dismissal is a final dismissal. In some states the plaintiff can dismiss it, but there's still an opportunity to refile the lawsuit within a certain period of time. Another way that lawsuit can be resolved is the defendant can win it on a motion. The defendant doctor can get the lawsuit dismissed at the motion stage. A third way, and one that I think our physicians are aware of, is settlement. You know, you can decide to compromise your case with the plaintiff. Then, the final way is of course a trial.

J. Baugh: Sure, so let's talk a little bit about the settlement process and how that works.

Brian: Okay.

J. Baugh: Whether or not a case can be compromised or not is often raised during a case. Sometimes a plaintiff will raise it, sometimes a defendant will raise it. Sometimes the court will raise it. There might be something called a pre-trial settlement conference, or a pre-trial conference in which the court asks the parties has there been an attempt to try and settle the case? That often comes up in a case, whether a case should be settled or not, and it's often done through a process that's either a mediation or a judicial settlement conference. Where you have a mediator or perhaps a judge who's trying to get the parties to come to some sort of a resolution.

Now, these conferences or these mediations usually take a full day, in which they try to decide whether they can compromise the case. You'll begin the day usually in a joint session. The mediator will talk about the mediation process. Maybe the two parties will make some sort of an opening statement, and then you break a part into separate rooms. Then, the mediator will go back and forth between the rooms. You'll have the plaintiff and the plaintiffs attorney in one room, and then you and your defense attorney and your SVMIC claims attorney will be in the other room.

The mediator will go back and forth and try to put a little pressure on either side, and try to point out the weaknesses of your case, in order to get the two sides to try to come together. Now, a mediation sometimes is boring, sometimes there are frustrating stretches of time in which you think nothing’s going on, but that's not actually the case. A lot of times important work is being done, and you always end up leaving having learned something through the process. Even if you don't settle the case, you will at least learn something, and so it's often beneficial to have a mediation. Then, one last thing to mention about that is your SVMIC policy does pay our insured doctors a per diem for attending a mediation.

Brian: I think to your point J, even if you're not able to settle in the mediation, you really learn more about your trial if it goes to that next phase, right?

J. Baugh: That's right. Usually during the process of a mediation the sides get closer together, so sometimes if it doesn't settle the day of the mediation it might settle later. I've had that happen.

Katy: Yes, I have too.

J. Baugh: A lot. Yeah. It's always beneficial to have a mediation because you get closer together in terms of trying to reach a number that everyone can live with, but you also learn something that will help you as the case develops further.

Brian: Katy, if the mediation just doesn't work out, even at that time or days later, the next step is going to end up being a trial.

Katy: That's right. Trials are what you've seen on TV, though they're not nearly as exciting I would say.

Brian: That's true.

Katy: I mean, they are, but they're conducted in the same manner. You're in a courtroom, there's a court reporter who transcribes everything that's said. You're in front of a judge. Most often medical malpractice cases are decided by a jury, though they could be decided by a judge. But, it's a formal process. It can be a lengthy process. You will need to attend every day of a trial. This is definitely another one of those peaks of activity. You'll spend a lot of time working with your defense attorney preparing for the trial, and I will say, even though that can be difficult to find all that time, look at it in a positive way.

The more you learn about the trial, the experience, what the court will look like, how the trial will be conducted. It will ease your anxiety about the trial itself. You'll feel more prepared, and as with mediations, your SVMIC policy does provide a per diem for every day of your trial attendance, so hopefully that will help defray some of the expense for having to attend the trial itself.

J. Baugh: That's right, so we've talked about settlement, we've talked about trial. You would think that once the trial is over, the case is over.

Katy: Not over.

J. Baugh: But unfortunately that's not always the case, because then you have the appellate process. So, once a trial is over, either side can choose the appeal the case if they can find a legal basis for doing so. You can't appeal just because you lost, just because you don't like the outcome. You've got to have a legal basis, such as evidence was excluded that should have been allowed, or vice versa. Evidence was allowed that should have been excluded. That's a legal basis for appealing.

So normally you have 30 days after trial to decide whether to appeal the case. If neither side appeals, then it's over. But, if one side decides to file an appeal then it sort of takes on another life. It takes on appellate life, and all of this then becomes lawyer based. You're not going to have to appear at trial again and give testimony again. It's all done by the attorney's. They'll file briefs, they'll often argue in front of the court of appeals. Most states have two different levels of appellate activity. You have the court of appeals, which is required to hear a case if it's filed there, and then if that gets appealed to the state supreme court, then the supreme court gets to decide whether they want to accept the case or not.

There's really not much for you to do during an appeal of a case, your lawyer will take care of that for you. But, it can be a long wait. It could be 18 to 24 months at the court of appeals level. It could be another year or so at the state supreme court level. So unfortunately, just because a trial is over that doesn't necessarily mean the case is over. It may take on another life through the appellate process.

Brian: This has been incredibly informative, a lot of great information. As we get ready to wrap up do you guys have any final thoughts on litigation 101?

Katy: I want to just mention stress. I on occasion have spoken to physicians who are clearly stressed about either the idea of a lawsuit, about a lawsuit that's just been filed, about going to trial. Litigation, especially your first lawsuit, is unfamiliar. It is another world. It is scary, because you're feeling attacked personally because of your care and competence. You're worried about your financial stability. Often the money that is sought is significant. It is a big deal. I do think that once a physician gets to the end of the lawsuit and it's been resolved, or even is in the middle of the process of it.

The reality is less scary than the fear, but I just would encourage physicians to not let the stress control them. Speak to your defense attorney, speak to a healthcare provider, speak to your spouse. Speak to one of us. There are a lot of resources. The Tennessee Medical Foundation in our state has lots of great resources to assist physicians going through litigation stress, so don't ignore it. It's significant.

J. Baugh: Mm-hmm (affirmative). And then I think the other thing to mention is, we've already touched on it a bit here, but the time that will be involved. It could be a few years. It's usually two to three years before a case is tried and reached a final conclusion, so just be sort of prepared for that. And like we've said before, there are peaks and valleys of activity. Be prepared for that as well. Not just the length of the trial process, but also the peaks and valleys of activity that will happen along the way.

Brian: Katy, J, thank you so much for being here today, discussing this important topic. Thank you for all that you do in the claims department with the other colleagues that you work with there.

Katy: Thanks.

J. Baugh: Thank you Brian, good to be here.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast. 

The contents of this podcast are intended for informational purposes only, and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time.