Evidence-Based. Clearly Delivered.
Evidence-Based. Clearly Delivered.
As discussed in Part 1 of this series, the practitioner’s malpractice insurance carrier should be notified after receiving court papers. In most cases, the carrier will provide legal defense. For those cases where an insurance carrier is not defending the case, the practitioner is strongly advised to seek out an experienced medical malpractice defense attorney.
The answer to the complaint for medical malpractice lets defendants and the court know that you are aware of the lawsuit and will defend against it. Each jurisdiction gives a set amount of time for the answer to be filed. This time may be extended by agreement between plaintiff and defendant or by court order. When a defendant in a lawsuit fails to answer within the time allowed for that purpose, or fails to appear for the trial, a default has occurred and a judgment may be entered against the defendant.
The only way for a defense counsel to successfully defend a client is to gather evidence related to the case and to discuss the circumstances of the case with the client. Attorney-client privilege makes such discussions confidential, meaning providers can share information with their defense counsel without worrying about whether that information will lead to new legal problems. Because of competing interests, co-defendants should consider not having the same attorney representing them.
After consultation with the defense attorney, the answer is prepared. Generally, it will consist of an “admits”, a “denies”, and “lacks sufficient information to respond to the allegation” to each of the numbered paragraphs in the lawsuit. The answer may also include ‘affirmative defenses’.
An affirmative defense is a defense in which the defendant introduces evidence, which if is credible, will lessen liability, even if it is proven that the defendant committed the alleged acts. Common affirmatives are (1) failure to state a claim, (2) statute of limitations, and (3) prior and subsequent negligent providers. There are many others that could apply.
Failure to state a claim means that the plaintiff or complaining party has not alleged one or more of the following:
Statute of limitations means that a plaintiff has a certain amount of time in which to file a complaint for claiming medical malpractice. If the complaint is filed after that time, then the complaint can be dismissed forever for that reason alone.
Prior and subsequent negligent providers means the medical care received from other providers before and after the injury complained about also contributed to the plaintiff’s injury.
In some cases, if another provider could be liable for the plaintiff’s injuries, and the provider is not named in the original complaint, the provider can be included through different mechanisms. The plaintiff can amend the complaint to include the missing person or entity, while the defendant’s providers can file a third party complaint against the missing person or entity.
After the answer has been served on the plaintiff and filed in court, the discovery phase begins.
Discovery will be discussed in Part 3.
Sample Malpractice Complaint with Answer:
Sample Complaint & Answer
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