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Once a lawsuit is filed, a complex legal process begins with tight deadlines, long waiting periods and a variety of paperwork.  This article will help you understand that process.



Request for Records
You may first become aware that someone is considering a lawsuit when you receive a request for a copy of a patient's records. After sending the records, you may hear nothing for several months. If you receive another such request a few months later, it may indicate that the person is “shopping” for an attorney to take his case. Each attorney will request and review the records to decide whether there are sufficient grounds to take legal action.


Any time you receive a request for records and you suspect that it is related to a potential lawsuit, contact ProAd immediately. We will provide you with guidance in fulfilling the request. Under no circumstances should you make any alterations or additions to the records. Such changes can usually be detected and will make your case indefensible. If you recall something that you forgot to note in the record, tell your attorney and let him or her decide how to handle it. Additionally, alterations to the record may affect your policy coverage.



How a Lawsuit is Filed
In Virginia, medical malpractice cases are almost always filed in the state Circuit Court. Only occasionally will a matter be filed in federal District Court. Rarely, a small matter might be filed in state General District Court.

  • Circuit Court: This is the primary court for civil litigation in cases in which a plaintiff is seeking $15,000 or more in damages.

  • Federal District Court: This court may be used if a patient lives in a state other than the defendant Physician(s).


How is a Physician Notified of a Lawsuit?
You will probably not be aware if the steps described above are occurring to initiate a lawsuit against you. You will usually learn of the lawsuit in one of two ways:


1) You are served with a Summons and Complaint by a sheriff, other legally authorized process server or by certified mail; or 2) If Professionals Advocate is defending a lawsuit against another doctor, you were involved in that patient’s care, and you have been or may be named as an additional defendant in an amended complaint, we will let you know that you might receive papers regarding the lawsuit, and we will inform you of how to proceed. It is vital that you contact Professionals Advocate immediately if you learn that you are being sued. Do not ignore any papers you receive. The time frame in which a response must be filed is narrow, so we will need to assign you an attorney immediately. The time frames for responding are as follows:

  • Circuit Court: Your attorney will have 21 days from the date you are served with a Complaint to respond.

  • Federal District Court: Your attorney will have 20 days from the date you are served with a Complaint to respond.


How Does Professionals Advocate Initiate the Defense of a Lawsuit?
When you contact Professionals Advocate to report a lawsuit, we will request that you send us a copy of the Summons and Complaint; all accompanying legal paperwork; and a copy of the patient’s medical records. Once coverage is verified, we will assign a defense attorney and claims representative.


Within a few days of coverage verification, you will receive a letter from Professionals Advocate acknowledging that we have received the papers you sent and providing you the name of your attorney and claims representative. Also during that time, your claims representative will call you to introduce himself or herself. The claims representative will not discuss the details of the case with you at this time, unless you wish to do so.


You will be contacted by your defense attorney's office to schedule a meeting between you, the attorney and the claims representative. At this meeting, the three of you will discuss the facts of the case and review the patient’s records. You will be informed about the litigation process, what the various phases will be and how long each is likely to take.

The Attorney’s Initial Response
Because of the short time frame required to respond to the lawsuit, your attorney will probably file a response, usually a pleading called an Answer, before you meet. Usually there are few specifics in the response, and the attorney can use standard legal language.  However, he or she may need to speak with you before your initial meeting to verify certain dates or other facts cited in the Complaint.



The Discovery Process
The discovery process begins as soon as an attorney is assigned to your case. This process involves pretrial devices or methods for obtaining information about a case. It includes requests for records, interrogatories and depositions.

Your attorney will obtain the patient’s records early in the process. If other doctors treated the patient, your attorney will request copies of those records.

Interrogatories are a set of written questions submitted to parties who might have information about the facts of the case. Interrogatories directed to you will be submitted to your attorney by the plaintiff’s attorney. Most of the questions will be basic, and your attorney will respond to them. Some will be factual inquiries, such as: “Did the doctor see Mr. Smith on May 1 of last year?” If the questions are inappropriate, your attorney will respond to that effect. If some questions are more complex, your attorney will ask you to prepare a response. Your attorney will put your response into the proper legal format for submission.

A deposition involves testimony taken under oath prior to trial from witnesses or parties involved in a lawsuit. During a deposition, attorneys for both sides have an opportunity to question individuals about the facts of the case. Testimony is recorded by a court stenographer and sometimes by a videographer. The deposition is a key part of discovery, and it will require the most preparation on your part.

Depositions usually take place three to six months into the discovery process. Your attorney will initially focus on obtaining records, gathering facts from involved parties and developing a defense theme. Your attorney will delay your deposition until the defense theme is established and you are prepared for the deposition.



The Timeframe for the Process
Although our goal is to go to trial approximately one year after you are first served, this is sometimes not possible. A court date may be set when the lawsuit is first filed, but the date may change. The court may set the date without checking the schedules of any of the involved parties. Attorneys may have conflicts, expert witnesses may not be available or you may have an unavoidable conflict scheduled for that time. A delay may also occur if the discovery process has not been completed. In some instances, the parties arrive at the court on the date indicated and a judge is not available. Your attorney will keep you informed about your court date. Be sure to promptly let your attorney know if certain dates are inconvenient for you.



The Settlement Conference
At some point in the process, a court-ordered pretrial settlement conference may be held. Typically, a judge or retired judge will preside over the pretrial settlement. In many jurisdictions, you are required to attend this conference. If the court grants permission for you to be absent, you will need to be available by telephone to provide settlement permission if necessary.

Professionals Advocate obtains an insured’s consent prior to settling a lawsuit. Your claims representative and defense attorney will discuss potential settlement with you and answer your questions concerning the issue. If we recommend settlement, your claims representative will fully inform and advise you of all ramifications of settlement.



The Appeals Process
If you win your case and the plaintiff chooses not to appeal, the legal process is over. If the judgment is against you, and there are legal grounds to do so, your attorney may recommend appealing to the Supreme Court of Virginia.

A decision cannot be appealed simply because one party isn’t happy with the verdict. The party must have legal grounds for appeal. Such grounds may include an incorrect ruling by the judge during the trial or the judge failing to give the jury proper instructions.


Appeals are submitted to the Supreme Court of Virginia and an appeal must be noted within 30 days of the verdict being entered into the court records. This court may overturn the verdict, remand the case back for a second trial or agree with the lower court and rule that the verdict stands. If the Supreme Court declines to hear the case, the decision of the trial court will stand.


If your case was heard in the federal district court, your initial appeal will be heard by the U.S. Court of Appeals that has jurisdiction, typically the 4th Circuit Court of Appeals, located in Richmond, Virginia. After a decision is rendered by the U.S. Court of Appeals, you can petition the U.S. Supreme Court to hear your appeal. If certiorari is granted, your appeal will be heard by the Supreme Court.



We’re Here to Help
Your claims representative and attorney understand that this is a difficult and stressful time for you. If knowing the status of your case helps you feel in control of the situation, do not hesitate to call either of them at any stage in the litigation process.