Anatomy of a Lawsuit

Q: What types of claims are The Program experiencing?

A: The types of claims experienced by The Program have been primarily related to allegations involving improper treatment, incorrect diagnosis and suicide. However, over the course of the past few years, The Program has also been involved in several high profile cases such as those involving psychiatrists who have either admitted or treated patients in facilities where there have been allegations that the treatment provided was knowingly improper or unnecessary and that it was provided solely for the purpose of obtaining and exhausting the patient’s insurance benefits; as well as cases involving repressed memory or dissociative disorder cases.

Q: If a Program participant becomes aware of a claim, what is the first step in the process?

A: Contact PRMS immediately. According to the terms and conditions of the participant’s professional liability insurance policy through the APA-endorsed Program, PRMS must be notified as soon as practical of any claim. The participant should call PRMS’ toll free number and request to speak with a claims examiner who services the geographic area. The claims examiner will either handle this matter personally or refer it to appropriate counsel in the participant’s geographic location.

Q: What are the steps in the litigation process that a doctor should be aware of?

A: Having a good basic understanding of the litigation process helps our members to reduce the anxiety and uncertainty that accompanies the traumatic experience of being named as a defendant in a lawsuit. Also knowing what to anticipate helps the member to assist their attorney in preparing a strong defense on their behalf. The phases of litigation are generally as follows:

Notice: Some states require that the patient or a legal representative notify the physician that a claim for malpractice is forthcoming. This notice can take the form of either a letter from an attorney or a standard notice form promulgated by the state.

Summons and Complaint: A document that is served upon you that formally initiates a lawsuit. You should contact PRMS immediately upon being served with a Summons and Complaint. The Complaint lists the plaintiff’s allegations of malpractice and a formal answer must be filed by an attorney on your behalf within a specified period of time. Failure to file an answer may result in a default judgment against you. Never attempt to answer the complaint on your own or contact the plaintiff, or the plaintiff’s attorney, directly. An attorney will be retained to assist you from this point forward.

Discovery: A pre-trial process in which the plaintiff and the defendant obtain facts and information from each other and conduct an investigation in order to fully ascertain the facts and to further develop the legal and medical theories involved in the case. One means of obtaining this information is by serving interrogatories, which are formal written questions answered under oath, on each party to the action. Another discovery device is a deposition, which is a formal question and answer session in which one party to the lawsuit asks oral questions of the other party or parties or witnesses. A deposition is conducted under oath, usually in one of the lawyer’s offices, with a court reporter present who is recording the testimony.

Trial: Once all discovery is completed, the matter then proceeds to trial. The trial process involves the impaneling or selection of a jury, opening statements, the introduction of evidence through testimony of witnesses on both direct and cross examination, closing statements, jury instruction and deliberation, and the rendering of a verdict.

Q: How are defense attorneys chosen to represent Program participants?

A: The Program utilizes a nationwide panel of experienced psychiatric malpractice attorneys to represent the interests of Program participants. A large number of firms that are currently on panel have been involved with Program since its inception. Given the excellent reputation that The Program has established over the years, we receive numerous requests from firms nationwide to be admitted to panel. Only the firms that have demonstrated expertise in defending psychiatric malpractice actions are considered on an as-needed basis.

Q: How can doctors prevent claims or lawsuits?

A: Unfortunately, no one can totally prevent a claim or lawsuit from being brought against them regardless of merit, as this is a function of the American judicial system, i.e., everyone is entitled to their day in court. However, there are ways to decrease the potential for being the target of a claim or lawsuit by learning and utilizing good risk management practices. We encourage our members to use our toll-free risk management consultation service, which is staffed by nurse attorneys, who provide immediate guidance and practical risk management advice either prior to or during a significant event which has the potential of resulting in a claim or lawsuit. Our risk management department also coordinates and presents CME-accredited seminars and publishes a risk management newsletter, "Rx for Risk." The seminars and the newsletters both address up-to-date issues involving clinical, legal and risk management aspects of everyday practice.

Q: What is The Program’s claim philosophy?

A: The Program’s claim philosophy is to provide a quality defense which yields excellent results by utilizing cost effective means. This can best be accomplished by using a team approach involving defense counsel, the claims representative, and The Program participant. Each team member contributes significantly to the development, investigation, analysis and resolution of a claim. The process involves: frequent communication among the team members; early development of a plan or strategy to identify and prioritize issues to better focus discovery activities to evaluate liability and damages promptly; coordination of tasks among team members; a joint decision making effort to arrive at a reasonable course of action to expeditiously and successfully resolve the claim.

Back to Claims Article Archive