Part One  |  Part Two | Part Three |  Part Four

Picture this: A healthcare provider is having office hours. The next patient who enters the consultation room asks the healthcare provider “Are you Jane Doe?” to which the provider answers “yes”. The patient proceeds to present a large envelope to the provider and says “You’ve been served!” The healthcare provider groans mightily and collapses in shock. This scenario has been exaggerated and is more indicative of a movie set than real life, but every day healthcare providers and institutions across the nation are being served with summonses and complaints. In a private practice, it is likely going to be the doctor or front desk staff who is served. Physically handing the legal papers to the practitioner is not an absolute must. Leaving court papers at the practitioner’s office with a competent adult can be enough. Institutions might have a designated person to accept service on their behalf and their employees who are named in the suit.

Every case is different, but one can say with certainty that being served does not mean you were negligent or that you did not in fact provide excellent care. What it does mean is that you are now on notice that you are being sued for medical malpractice. Being ‘served’ is actually a technical process that confers jurisdiction (power or authority) over both parties so that the court may hear the case.

This is a multi-part series that will define common legal terms and give a general overview of the anatomy of medical malpractice litigation. The information will not be specific to any state laws unless otherwise indicated. At numerous points, there will be reminders that the following posts are informational only and that just like seeking out the right specialist for a surgical procedure, a competent medical malpractice defense lawyer is the best way to protect your reputation and interests. However, having some basic legal concepts in hand will help provide you with some element of control over the process.

To begin this educational series, let’s start with the most basic concept of all – ‘medical malpractice’ itself, which falls under the umbrella of tort law.

WHAT IS A TORT?

A tort is an act that injures someone in some way. It consists of four elements or requirements:

• Duty – a legally enforceable obligation to provide to a particular standard of medical care
• Breach of the duty – the defendant did not provide that particular standard of medical care
• Causation – the breach was the cause of an injury to the patient
• Injury – there must be an injury such as a baby born with a birth defect, more extensive medical treatment for a delayed diagnosis, loss of limb, emotional distress, or death

HOW DOES A LAWSUIT BEGIN?

For a lawsuit to begin, the plaintiff or injured person files a complaint. The complaint identifies the defendants or parties who are alleged to have committed the medical harm.  When any of the defendants are unknown, they are listed as John Doe or Jane Doe. The complaint also describes the injuries the plaintiff allegedly suffered. The plaintiff also asks for a judgment in her favor. A judgment can consist of a demand for compensation for pain and suffering, lost income, future lost income, shortened lifespan, and payment for future medical treatment among other things. In some states, a specific amount of money will be requested as damages.
How the defendant responds to the Complaint will be discussed in Part 2.

Related ObG Topics:

You’ve Been Served! Part Two: Next Steps After Getting Court Papers

You’ve Been Served! Part Three: Intro to the Deposition

You’ve Been Served, Part Four: An ObGyn Defendant Wins the Case – Guidelines Matter