MEDICAL MALPRACTICE DEFENSE

A medical malpractice action typically starts with service of a Summons and Complaint on a defendant physician, nurse, or other medical provider being sued for medical malpractice. If you’ve been served with a Summons and Complaint for medical malpractice, you should immediately contact your professional liability insurance carrier to report the claim. You should NOT contact the plaintiff’s attorney or discuss the case with anyone other than your insurance representative. You should also segregate and maintain your medical records or chart in its original form without alteration or amendment.

An attorney may contact you to discuss the care you provided to one of your patients for a number of different reasons. Although some of these reasons may not involve a potential or active malpractice claim, you should obtain the attorney’s contact information and immediately report this information to your claims representative at your professional liability insurance carrier. You should NOT discuss the care with the patient’s attorney until you’ve spoken with the claims representative at your professional liability insurer or the risk management department at your health care facility.

A subpoena ad testificandum is a court summons for an individual to appear and give testimony at a deposition, hearing, or other proceeding. Although a medical provider may be subpoenaed for many reasons, a subpoena to testify at a deposition in a pending medical malpractice should be provided to your professional liability carrier immediately. Often, professional liability insurance companies will assign defense counsel to represent medical providers at subpoenaed depositions to assess any potential exposure and protect your interests at the deposition. You should NOT contact the attorney who served the subpoena until you’ve spoken with your claims representative or defense counsel.

The life of a medical malpractice action depends a number of factors, such as the complexity of treatment, the medical provider’s involvement in the plaintiff’s care, the number of parties involved in the lawsuit, and the judicial resources available to handle the case. Although certain medical malpractice claims may be disposed of shortly after the filing of the complaint, a medical malpractice action in the State of New Jersey can take up to four or five years to work its way through the court system.

In the context of medical malpractice defense, the Affidavit of Merit Statute imposes a procedural requirement for the purpose of weeding out frivolous medical malpractice lawsuits against certain licensed healthcare professionals at an early stage in litigation and creates a statutory defense to medical malpractice lawsuits. Generally speaking, the Affidavit of Merit Statute requires every plaintiff to provide each defendant with an Affidavit of Merit from a like qualified physician, specialist, or healthcare provider attesting to the “reasonable probability” of professional negligence within sixty days of the filing of the defendant’s answer to the complaint. While the court can grant a plaintiff an additional sixty days to obtain an Affidavit of Merit, a plaintiff’s failure to serve an Affidavit of Merit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action and typically results in a dismissal of the complaint with prejudice.