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
Postgraduate Institute for Medicine (PIM) requires instructors, planners, managers and other individuals who are in a position to control the content of this activity to disclose any real or apparent conflict of interest (COI) they may have as related to the content of this activity. All identified COI are thoroughly vetted and resolved according to PIM policy. PIM is committed to providing its learners with high quality CME activities and related materials that promote improvements or quality in healthcare and not a specific proprietary business interest of a commercial interest.
Faculty: Susan J. Gross, MD, receives consulting fees from Sema4, 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.
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 Dec 31 2020, 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.
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.
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.
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 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:
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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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