You’ve Been Served! Part Two: Next Steps After Getting Court Papers
Learning Objectives and CME/Disclosure Information
This activity is intended for healthcare providers delivering care to women and their families.
After completing this activity, the participant should be better able to:
1. List components of an affirmative defense 2. State the next steps after receiving court papers
Estimated time to complete activity: 0.25 hours
Susan J. Gross, MD, FRCSC, FACOG, FACMG
President and CEO, The ObG Project
Disclosure of Conflicts of Interest
Postgraduate Institute for Medicine (PIM) requires faculty, planners, and others in control of educational content to disclose all their financial relationships with ineligible companies. All identified conflicts of interest (COI) are thoroughly vetted and mitigated according to PIM policy. PIM is committed to providing its learners with high quality accredited continuing education activities and related materials that promote improvements or quality in healthcare and not a specific proprietary business interest of an ineligible company.
The PIM planners and others have nothing to disclose. The OBG Project planners and others have nothing to disclose.
Faculty: Susan J. Gross, MD, receives consulting fees from Cradle Genomics, and has financial interest in The ObG Project, Inc.
Planners and Managers: The PIM planners and managers, Trace Hutchison, PharmD, Samantha Mattiucci, PharmD, CHCP, Judi Smelker-Mitchek, MBA, MSN, RN, and Jan Schultz, MSN, RN, CHCP have nothing to disclose.
Method of Participation and Request for Credit
Fees for participating and receiving CME credit for this activity are as posted on The ObG Project website. During the period from Dec 31 2017 through Jan 25 2023, participants must read the learning objectives and faculty disclosures and study the educational activity.
If you wish to receive acknowledgment for completing this activity, please complete the post-test and evaluation. Upon registering and successfully completing the post-test with a score of 100% and the activity evaluation, your certificate will be made available immediately.
For Pharmacists: Upon successfully completing the post-test with a score of 100% and the activity evaluation form, transcript information will be sent to the NABP CPE Monitor Service within 4 weeks.
Joint Accreditation Statement
In support of improving patient care, this activity has been planned and implemented by the Postgraduate Institute for Medicine and The ObG Project. Postgraduate Institute for Medicine is jointly accredited by the Accreditation Council for Continuing Medical Education (ACCME), the Accreditation Council for Pharmacy Education (ACPE), and the American Nurses Credentialing Center (ANCC), to provide continuing education for the healthcare team.
Physician Continuing Medical Education
Postgraduate Institute for Medicine designates this enduring material for a maximum of 0.25 AMA PRA Category 1 Credit(s)™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.
Continuing Nursing Education
The maximum number of hours awarded for this Continuing Nursing Education activity is 0.2 contact hours.
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 DEFENDANT AND ATTORNEY-CLIENT PRIVILEGE
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’.
WHAT IS AN AFFIRMATIVE DEFENSE?
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:
the defendants owed a duty of a particular standard of medical care
the defendants did not provide that particular standard of medical care
the failure to provide a particular standard of medical care injured the plaintiff
an injury occurred
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.
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Disclosure of Unlabeled Use
This educational activity may contain discussion of published and/or investigational uses of agents that are not indicated by the FDA. The planners of this activity do not recommend the use of any agent outside of the labeled indications.
The opinions expressed in the educational activity are those of the faculty and do not necessarily represent the views of the planners. Please refer to the official prescribing information for each product for discussion of approved indications, contraindications, and warnings.
Participants have an implied responsibility to use the newly acquired information to enhance patient outcomes and their own professional development. The information
presented in this activity is not meant to serve as a guideline for patient management. Any procedures, medications, or other courses of diagnosis or treatment discussed or suggested in this activity should not be used by clinicians without evaluation of their patient’s conditions and possible contraindications and/or dangers in use, review of any applicable manufacturer’s product information, and comparison with recommendations of other authorities.
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