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| The Role of the Claims Services Department |
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It is our hope that you are never presented with a malpractice claim. But if you are, we want you to know that our experienced team of professionals stands behind you to guide you through the maze. This article will enlighten you about what may happen if you are presented with a malpractice claim, discuss the common questions we receive, and outline the various terms associated with the claims process. It also discusses your duties and responsibilities under the Trust Agreement.
"This claim is ridiculous. I've done nothing wrong! They can't sue me"
This is a common, and not unreasonable, reaction to being presented with allegations of professional negligence. The reality is that "they" can, and will, sue CAP Members each year.
"What happens when a claim is filed against me, and what should I do?"
THE CLAIM:
Webster's defines a claim as, "the demand for something due; to ask for as a right." (The new Lexicon Webster's Dictionary of the English Language) A claim is the assertion of a legal right which carries with it a demand for appropriate relief. Your first notice of a claim may be a threatening phone call from a patient, or an event that likely will lead to a claim, such as, the unexpected death of a patient from anesthesia complications, an "intent to sue" letter, or service of a Summons and Complaint. Your Trust Agreement requires you to notify us "...upon the happening of any event reasonably likely to involve the Trust Agreement, including, but not limited to, the receipt of any notice of intent…suit, or demand for arbitration..." Article VIII, §10.
THE SUMMONS AND COMPLAINT
A Summons is a notice from the Court intended to notify the person named that an action (lawsuit) has been commenced against him/her and to request that person respond to the notice.
A Complaint is a statement of the plaintiff's claim (allegations), setting forth the facts upon which the case is based and the nature of the relief (damages) sought.
DUTIES OF EACH MPT MEMBER UPON RECEIVING NOTICE OF A CLAIM:
The first thing to do is contact MPT immediately. The Trust agreement requires you to notify MPT "...upon the happening of any event… Failure to provide notice promptly shall subject the member to liability for additional expenses ...or may result in loss of claims defense and claims payment services." Always presume that time is of the essence in reporting a claim.
CLAIMS HANDLING:
Upon receipt or notification of a claim, MPT will assign a Claims Specialist to handle your case. While the methods employed depend on the nature and severity of each case, it generally includes an investigation into the facts of the matter and always includes a determination of the standard of care. This determination is made through consultation with Members in the same specialty that the case involves. Case investigation may involve discussions with, and sending letters to, the patient's attorney, requests for authorizations to obtain medical records from treating practitioners or institutions, and other communications to obtain the factual basis behind the claim. Claims Specialists may want to meet with you for an interview to review the medical record or discuss the case with you via a telephonic interview. If you have staff that were involved in the case, it may be necessary to meet with them, too. Each investigation is tailored to the unique nature of the case.
There are different paths your case may travel. The Claims Staff Committee, the Claims Review Committee, and the Claims Specialists' discretionary authority are three different avenues by which your claim may be evaluated. The nature of the case and the physician member's role will determine the method of review. The Claims Review Committee evaluates the most severe cases as well as those with unusual facts and circumstances. Regardless of how your case is reviewed, you will be an integral part of the process.
If the conclusion is that the claim is without merit, the claim is denied. The plaintiff may then chose to accept the decision or proceed with litigation or arbitration.
If MPT concludes that there is a reasonable probability that the plaintiff (patient) can support his allegations, and if the claim can be judiciously resolved short of litigation or arbitration, the Claims Specialist will confer with you regarding your options. If you agree with the conclusions, and provide written consent to resolve the matter, an effort may be made to settle the claim. There is never an admission of liability in such settlements and attempts are made to obtain the patient's agreement to maintain the confidentiality of the case.
LITIGATION MANAGEMENT:
Upon MPT's receipt of a lawsuit (Summons and Complaint) served upon you, MPT will refer it to a defense attorney who specializes in medical malpractice defense (after our review of its contents and coverage analysis). [It is important that you record and advise us of the date and method by which you received the court papers.]
Do not speak to anyone other than MPT or the attorney assigned to represent you in the case.
The attorney assigned will file a responsive pleading with the court on your behalf, or in cases of arbitration, will coordinate the selection of the arbitrators and the prerequisite events.
DISCOVERY:
Between the time the case proceeds to trial or arbitration, each side (plaintiff and defendant) will file written questions to each other (interrogatories) and may also request oral testimony in the form of a deposition. In each case, your appointed counsel will represent and assist you through the process.
ARBITRATION:
The court may order this case into arbitration, or if your patient signed an arbitration agreement, an arbitrator or panel of arbitrators, mutually agreeable to both sides, will decide the case. In cases of court ordered arbitration, the arbitrators' decision is not binding; however, all decisions are final under MPT's binding arbitration contract. In binding arbitration, arbitrators are vested with the power to decide both the facts and application of the law. In essence, to act as both judge and jury.
MOTIONS:
A motion is an application made by counsel to the court for a ruling or for an order. A motion frequently filed in a malpractice action is a motion for summary judgment. This is a legal tool to resolve issues in the case and can, under certain circumstances, resolve the entire case. It requires opposition from the plaintiff to defeat, and if no opposition or inadequate opposition is filed, the motion is typically granted. It must be noted, however, that these motions are easy to defeat because all that is needed is the existence of a single question of fact. The court can only rule on issues of law and where no issues of fact exist. In medical professional liability cases, a declaration from a physician expert that the standard of care was breached is typically enough to defeat a motion for summary judgment.
TRIAL OR ARBITRATION:
Webster's defines trial, in part, as "a test or testing by examination or experiment; a trying out; a test of character; powers of endurance; a hardship," as well as "a judicial examination of inquiry and determination of a cause in a court of law." Anyone who has gone through a trial will likely say it is all of those things. The trial date varies from one court to the next, but generally is scheduled 12 to 18 months after the complaint is filed. Trial dates are typically postponed, often at the last minute when courtrooms are unavailable or for a plethora of other reasons. Regardless, you must still be prepared for the case and ready to attend. In contrast, arbitration usually proceeds as scheduled because the parties mutually agree to the arbitration date in advance.
Arbitration is defined as a "submission of controversies, by agreement of the parties..., to persons chosen by themselves for determination." (Black's Law Dictionary)
Your participation and attendance at trial or arbitration is vital to the defense of your case. It is also required under the Trust agreement (Article VIII §12) "each...member and former member shall cooperate...and...attend hearings and trials..." [emphasis added])
Standard of Care: BAJI §6.00.1 (Book of Approved Jury Instructions, 8th edition) "DUTY OF PHYSICIAN - In performing professional services for a patient, a physician has the duty to have that degree of learning and skill ordinarily possessed by reputable physicians, practicing in the same or similar locality and under similar circumstances..."
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If You Have A Claim
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