Failure to promptly notify and forward a copy of the Summons and Complaint to your professional liability insurer may result in denial of coverage. (The CRICO policy includes such a clause.) The defendant has only 20 days from the date of receipt to file the appropriate response. Upon notification to the institutional risk manager and professional liability insurance representative, a lawyer will be assigned to respond on behalf of the named insured. Failure to answer a complaint can, also, result in the court ordering a judgment against the defaulting defendant, and awarding damages.

Do not ignore it.

Some response is necessary by the date specified. A patient’s record can be released if you have written authorization from that patient. The laws governing hospitals provide some guidance for medical group practices and individual providers in the office setting. For example, under Massachusetts law, a hospital or clinic served with a subpoena for medical records may release those records if:

1. the subpoena is for the records of a party named in the proceeding, as shown by the case caption on the subpoena, and
2. the records do not contain otherwise privileged information.

Both federal and state restrictions may come into play if the record contains “sensitive information” such as that concerning sexually transmitted disease; drug or alcohol abuse; and communication between the patient and psychotherapists, psychologists, and social workers. This list is not exhaustive and, in general, protection should be provided to any sensitive information that may cause a patient embarrassment or serious loss, such as a job or child custody. If the patient authorizes the release of the sensitive information, comply with the subpoena. Without such authorization, redact (take out) the protected information prior to releasing the record, and object to release of omitted portions, citing the legal basis for withholding the information.

If you do not have the patient’s authorization, and conditions 1 and 2 (above) are not met, then object to its release to the party issuing the subpoena. That party then has the option of seeking a court order to obtain the records. When in doubt, call your risk manager or legal counsel for advice.

If you are a CRICO-insured clinician who has been notified to appear for deposition, contact your sponsoring institution’s risk manager or CRICO’s Claim Department (617.450.5500) for assistance, guidance, and (if necessary) legal representation. If you have offered to be an expert on behalf of a CRICO-insured defendant, CRICO will arrange for legal representation on your behalf.

Your attorney has only 10 days to file a Notice of Objection to a deposition subpoena. Avoid discussing the case or the deposition with colleagues, as such discussions are not protected from legal discovery. Conversations with your spouse, risk manager, insurance company representative, and attorney are protected.

In addition to the defendants named in a malpractice lawsuit, you can be called to deposition not as a defendant but as a fact witness, such as subsequent treating clinicians or experts. Your testimony also has the potential to alter the course of the case as a whole. Some plaintiffs’ attorneys delay naming certain parties as defendants in the hope that they will voluntarily consent to a deposition. Health care provides who testify at a deposition must consider their potential involvement as defendants.

No.

Do not respond either orally or in writing to a lawyer representing a prior patient in a claim or potential claim. Any contact by the plaintiff and/or attorney regarding the case should be immediately referred to the institutional risk manager, the insurance company claim representative, or defense counsel.

Conversations with your spouse, psychotherapist, clergyman, attorney, risk manager, and liability insurance company representative are protected. Discussions within the official peer review process are also exempted from discovery by the plaintiff.

Support resources are available to you through CRICO and, in some cases, though your institution. Contact your sponsoring institution’s risk manager or CRICO’s Claim Department (617.450.5500) for assistance.

The statute of limitations in Massachusetts is generally three years from the date the individual becomes aware (or should have become aware) of the alleged act of malpractice. The statute has been modified so that there is an absolute limit of seven years in which a plaintiff may bring suit for occurrences after November 1, 1986. The seven-year time limit begins on the date of the event on which the claim is based, with the following exceptions:

• For retained foreign objects, the three-year time limit starts to run when the object is detected.
• Minors between the ages of two and six (at the date of the alleged malpractice) have until their ninth birthday to bring the action. For minors under age two on the date the alleged malpractice occurred, the seven-year limit runs out before their ninth birthday. 

Don’t ignore it!

A complaint notification from the BoRM (Board of Registration in Medicine) must be responded to within the time period stated. Under its regulations, the BoRM must conduct a preliminary investigation of anonymous and identified complaints, to allow the Complaint Committee to determine whether the complaint appears frivolous, or to proceed with further investigation.

CRICO-insureds should contact their institutional risk management representative regarding the filing of a potential claim in this type of matter so that appropriate guidance can be provided. Upon notification, CRICO reviews each situation on a case-by-case basis to determine whether a CRICO defense attorney should be assigned.

No.

Residents (house officers), fellows, and medical students can be named alone or with other providers in a medical malpractice case.

The legal ramifications of practice guidelines—developed for the evaluation and improvement of patient care—are mostly unknown. They have the potential to be either beneficial or damaging if you are involved in an adverse medical event. Most guidelines outline general practice, so how they are interpreted in specific situations will determine how they are applied in legal matters.

Individuals considering malpractice claims can use practice guidelines to inform their decisions. Guidelines that were followed may serve to discourage merit-less claims at the outset, preventing litigation. However, guidelines may also prompt claims if the care provided does not appear to be consistent with published practice guidelines.

Guidelines can also have a mixed role once a malpractice lawsuit has been filed. When brought up by either side’s expert, guidelines have been generally accepted by courts as evidence. They may serve as a “snapshot” of the standard of care at the time of an event, especially if the standard has changed significantly in the interim. However, guidelines can be damaging if you did not comply with them and did not record the medical rationale for the treatments chosen. Documentation of rationale and best judgments made is more important than ever.

Practice guidelines may hinder defense of a malpractice case by appearing to be definitive in areas with no genuine medical consensus, or exhaustive when in fact they implicitly allow for physician discretion. Fortunately, at this point, appropriately developed guidelines are much more likely to help improve and evaluate patient care than to come up in a malpractice claim.

The tribunal process is a screening mechanism adopted by Massachusetts and several other states with the aim of reducing and/or eliminating frivolous lawsuits alleging medical malpractice. A tribunal finding in favor of the defendant(s) does not necessarily end the case. In this state, plaintiffs (or their attorneys) can post a $6,000 bond (the amount can be lowered by the court) in order to proceed with the lawsuit.

The tribunal comprises a health care provider of the same type as the defendant, a lawyer, and a judge. The purpose of the tribunal is not to decide fault or weigh the credibility of evidence, but only to determine whether the plaintiff has presented sufficient evidence to raise at least one issue for further review by the court system. The plaintiff’s evidence at the tribunal is called the “offer of proof,” and ordinarily contains a letter from a medical expert offering an opinion favorable to the plaintiff’s claim.

Although Massachusetts does not allow the defense to present evidence, it does not preclude arguments by your defense attorney which highlight or expose weaknesses in the plaintiff’s case. Because the results are not binding, the value of tribunals in Massachusetts is primarily limited to discouraging only claims so frivolous that no expert testimony is available.

There is no universal “standard of care.” Health systems often adopt guidelines, policies, formal protocols that serve as a proxy for a standard, but can differ from one setting or system to the next. For MPL litigation, the standard is established at trial through experts who opine as to the applicable standard of care of the average qualified physician* in the circumstances of the case. In cases of doubt, the physician is expected to have used his or her judgment in accordance with accepted medical practice for a physician in the same area of specialty. The fact that in retrospect, the defendant’s judgment was incorrect is not in and of itself enough to prove medical malpractice or negligence. Physicians are allowed a range in the reasonable exercise of professional judgment and are not liable for mere errors of judgment so long as the judgment they made does not represent a departure from the requirements of accepted medical practice.

*Nurse practitioners, physician assistants, etc. are similarly assessed against their peers.