Medical Malpractice


1. What should I do if I am served with a summons and complaint naming me as a defendant in a medical malpractice lawsuit? What should I not do?

If you receive a summons and complaint naming you as a defendant in a medical malpractice lawsuit, you should immediately call your malpractice carrier and advise a claims representative. You will be given instructions to send the summons and complaint to the carrier for processing. Do not delay in putting your carrier on notice of the lawsuit, as a substantial delay could result in the carrier disclaiming coverage.

If the lawsuit involves an office patient, you should locate and safeguard the patient's chart. You may be asked to send a copy of the chart to your carrier as well. Do not make any corrections, additions or changes to the chart. Plaintiff's attorneys are very good at identifying alterations to a chart. The easiest way to turn a defensible case into a losing case is to have the plaintiff's attorney prove that you altered your chart.

Do not try to contact your patient to discuss why you are being sued. Once you have been served with legal papers, it is too late for you to have such a discussion with your patient. At that point, as they say on television crime shows, "anything you say may be used against you." Let your insurance carrier's representatives and your assigned attorneys handle any discussions. That's what you have paid those premiums for.

2. I have been served with a subpoena to take my deposition as a "non-party witness" in a case where I have not been sued. What should I do?

Even though you have not been named as a defendant, and therefore are not presently being sued, you should again immediately contact your malpractice carrier and advise a claims representative. The carrier will assign a law firm, at no cost to you, to help you prepare for your "non-party" deposition and to attend the deposition with you. This preparation might be extensive as you may have to review multiple medical and hospital records in order to properly prepare for your testimony

The same rules apply with respect to not altering your patient chart and not contacting your patient.

3. If I am not a named defendant in the lawsuit, but am only being deposed as a non-party, why is it important that I be represented and spend time preparing for my testimony?

Even though you are not presently named as a defendant in the lawsuit, the plaintiff or another named defendant could add you as an additional defendant, based upon what you say during your deposition testimony. Therefore, it is important that you be represented at your deposition and that you and your assigned attorney thoroughly prepare for your testimony. Also, if you ignore a subpoena, you could be held to be in contempt of court.