Settlement
Everyone has heard of settlement of a case, but it is not a formal part of the pre-trial or trial procedures. However, more cases are settled prior to the conclusion of a trial than you might think. There are substantial costs and risks involved in litigating a case to conclusion. The longer a case lasts, the more time, effort and money are expended.
Simply put, a settlement is an agreement made between the parties that resolves their legal dispute. A settlement is most often a financial disposition of a case without a decision on the merits. This means no fault is attributed to either party although it is typically the defendant who makes a payment to the plaintiff. Using this scenario as an example, the defendant would make a payment in return for the plaintiff signing a release of liability of the defendant. Most releases specifically state that the settlement by the defendant is not an admission of fault. Keep in mind that any settlement that results in a payment on your behalf — including by an insurance company or anyone else other than yourself — must be reported to the National Practitioner Data Bank (NPDB).
Discovery
An initial step in the formal pre-trial process is discovery. This is the process by which the parties to the litigation gather and learn of evidence to each develop their cases and reduce the element of surprise at trial. Through discovery procedures, attorneys can assess the strengths and weaknesses of both sides.
Depositions are the most important discovery tool. Every party to a lawsuit has the right to examine the other party or any person who may possibly be a witness.
Depositions are the most important discovery tool. Every party to a lawsuit has the right to examine the other party or any person who may possibly be a witness. This examination is a question-and-answer session in which the attorneys for both parties are present and involved in the examination and cross-examination of the witness. Depositions are officially recorded and taken under oath and their importance cannot be overemphasized. The primary purpose of the deposition is to discover facts and to supplement testimony and evidence obtained from other sources.
Preparation for your deposition is crucial. Your testimony can be used to impeach your credibility if you offer contradictory testimony at trial. It is important that you and your attorney devote sufficient time to this preparation. Your attorney will instruct you to review the entire history of the case. You will need to familiarize yourself with all pertinent medical records so that you can refer to this material easily. Your preparation should not be left until the last minute. Your defense attorney should set aside enough time to thoroughly prepare you for this event and alert you to the possible tactics of the plaintiff’s attorney.
Trial
As your trial date approaches, you will need to clear your calendar. The trial will need to be your first priority. You should follow similar steps in preparing as you did for your deposition. Keep in mind that the litigation process takes quite a while, and it is likely that your deposition was months ago. You should become familiar with the transcript of your deposition.
The majority of medical malpractice cases are jury trials. These typically consist of opening statements, presentation of evidence (including witness testimony), closing arguments, jury deliberations and the verdict.
Attorneys for each party to the lawsuit make opening statements. This is the opportunity for each to outline what they intend to prove or what the evidence will show. The plaintiff’s attorney will go first.
The plaintiff’s goal during the presentation of evidence is to produce facts to convince the jury that you were negligent and that your negligence caused injury to the plaintiff. The plaintiff has the burden of proving this by a preponderance of the evidence, which means more likely true than not true, or simply 51% true. If the plaintiff has alleged that you committed gross negligence, a higher burden of proof of clear and convincing evidence is imposed on that portion of the claim.
The plaintiff will attempt to meet the burden by introducing evidence through witnesses, medical documents, exhibits, etc. The most critical evidence for the plaintiff usually comes from one or more expert witnesses (learn more about the ACR Expert Witness Affirmation Statement process at the end of the article), who must testify that your treatment of the plaintiff did not meet the legal standard of care and that the failure to meet the standard caused injury to the plaintiff.
The defense goal on your behalf is to either prove that there was no negligence whatsoever or that the plaintiff’s injuries were not the direct result of your negligence. Like the plaintiff, the defense will introduce evidence through medical documents, witnesses, exhibits, etc. to meet its goal. Expert witnesses for the defense are also critical in establishing that the standard of care was met or that the plaintiff’s injuries were not the result of a deviation from the standard of care. Demonstrative evidence, such as charts, anatomic models and videos, can be helpful in educating the jury about the medicine involved in the case.
Once both sides conclude, the attorneys make their closing arguments to summarize their cases. Then, the case is deliberated by the jury (if a jury trial) or a judge (if a “bench” trial). The jury will give its formal decision known as the verdict. The verdict will be in favor of either the plaintiff or the defendant. Damages will be awarded to the plaintiff if the verdict is in favor of the plaintiff.
A lawsuit does not necessarily end when a verdict is rendered. If the verdict has been entered against you as the defendant, you have options, including filing an appeal. Your attorney will discuss these options with you.
National Practitioner Data Bank
As mentioned previously, any payments, including settlements made on your behalf by an insurance company or anyone else are required to be reported to the NPDB. Individual physicians are not required to report payments they make on their own behalf.
The NPDB is an information clearinghouse that collects and releases information related to the professional competence and conduct of physicians, dentists and other healthcare practitioners. The NPDB releases the following information: reports of medical malpractice payments, reports of adverse licensure actions, reports of certain negative professional review actions and reports of Medicare and Medicaid sanctions. Hospitals, healthcare organizations and insurance companies are among the entities that can request reports from the NPDB. Therefore, if you are reported to the NPDB, it has the potential to adversely affect your future employability or insurability.
If your lawsuit results in a report to the NPDB, you should review the report for accuracy and follow the NPDB procedures if you feel it is factually incorrect. There is also a process that would allow you to add a statement of a limited number of characters to the report, with or without disputing a report. Once the NPDB processes your statement or dispute, it is sent to all entities that previously received that report and will be included with all future requests to the NPDB.
We realize that a medical malpractice case takes time and money away from your patient care and personal life. However, the stakes are very high for your practice — and your reputation. Invest in a qualified defense lawyer who can help prove you acted properly. The ACR’s Legal Office maintains a list of attorneys and law firms throughout the U.S. that represent radiologists in legal matters. Please contact us for more information.
How to Complete the ACR Expert Witness Affirmation Statement
The ACR Expert Witness Affirmation Statement is completed and submitted electronically. The ACR Expert Witness Affirmation Statement is completed and submitted electronically. Please log using this link to access the form.
By Susannah Jones, JD, Principal Attorney, ACR Legal, and Tom Hoffman, JD, CAE, General Counsel and Executive Vice President, Governance and Member Services
