Do you know anything about being sued for medical malpractice?

September 14, 2021 9:38 AM

The doctor in my novel is being sued for malpractice. I don't yet have the details nailed down -- whether it's a worthy case or not. What I'm most interested in now is the early stages of the process. How he finds out he's being sued, etc. Does he get notified by mail? What happens next?This is set in 1991, if that makes a difference. Details appreciated!
posted by swheatie to Law & Government (5 answers total)

As with so many things with the law, the answer is: "It depends."

What jurisdiction is your character in? That will change the pre-suit information that is required and/or usually provided.

The kind of medical practice, and the resulting injury will likely also have an effect on the process. A trauma surgeon in an ER who lost a patient, versus a botched plastic surgery, where the patient is still walking around might end up at the courthouse differently. It may also depend upon the plaintiff's attorney, as each attorney has a different approach.

I would reach out to a friend who is an attorney in the location that you are writing in, and ask them for a referral to someone who was doing med mal back then, from either side. The young lawyers from then are likely partners now, and should be able to provide you with some solid guidance.
posted by China Grover at 9:50 AM on September 14, 2021

Response by poster: This is in Los Angeles.

Based on China Grover's reply, maybe this is hard to answer with so many details TBD. It would still be helpful to get some sense of "what could have happened" or "what might have happened," knowing I may need to fix or adjust later.
posted by swheatie at 10:00 AM on September 14, 2021

Start with this, which is an overview of the entire US

An Intro to Medical Malpractice in the US

Then you can start looking at the controversies around the issue, as well as at primers and explainers published by California lawyers who specialize in medical malpractice, which would contain more detailed information.
posted by kschang at 12:30 PM on September 14, 2021

Prior to bringing a lawsuit against a physician or medical provider in the State of California, there is a mandatory requirement that notice be provided to the medical provider prior to the initiation of the lawsuit. The Notice of Intent to Sue must be served upon the potential defendant, at least ninety (90) days before the commencement of the lawsuit. This is codified in Code of Civil Procedure §364 which states as follows:

“(a) No action based upon the health care providers professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

(b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.”

The purpose of the notice is to allow the potential defendant(s) the opportunity to evaluate and potentially resolve any claim in advance of the commencement of litigation. Another of the underlying purposes was to avoid the element of surprise to the health care provider, as well as provide a reasonable opportunity to prepare a defense.

-- Heiting & Irwin (law firm) medical negligence legal primer, with other interesting info/links. Your character would have received this Notice of Intent to Sue in 1991. See also Woods v. Young; another readable legal firm summary, from Madison Law, with info on California's 'uniqueness' re: these lawsuits and the timeframe for filing ["three years after the date of injury or death, or one year after the plaintiff discovers or should have discovered the injury with reasonable diligence, whichever occurs first" -- but there are exceptions] (also codified, in Cal. Code Civ. Proc. § 340.5). Wikipedia entry for California's groundbreaking Medical Injury Compensation Reform Act (MICRA) of 1975. The Law of Medical Malpractice in California: A Survey of Basic Considerations. A medical malpractice lawsuit filed in in 1991 is likely resolved later than 1991; if it helps for plotting purposes, JAMA provides $$ data at this link: between 1992 and 2014, the rate of malpractice claims paid on behalf of physicians in the United States declined substantially. California cases for skimming: Dumas v. Cooney (1991), Burgess v. Superior Court (Gupta) (1992), Flowers v. Torrance Memorial Hospital Medical Center (1994), Hrimnak v. Watkins (1995), Russell v. Stanford University Hospital (1997)
posted by Iris Gambol at 6:42 PM on September 14, 2021

Practically speaking, it is very common in tort law to send what's known as a demand letter first, before you ever file a lawsuit. Basically, you say, "You wronged me, you need to pay me money, or else I will sue." This is an inexpensive first step that allows a dispute to avoid ever heading to court—for instance, by agreeing to a settlement, or to arbitration, etc.

So if the (allegedly) wronged patient does send a demand letter, you'd want to decide how your doctor responds to it. Maybe they were drunk and know it and botched a surgery and don't want any of this to come to light, so they're more willing to settle out of court. (I'm not sure how malpractice insurance would play here, though. I'm sure insurers won't gladly pay up just because a doctor is unwilling to defend their own behavior.) Or maybe your doc thinks they did nothing wrong, or could win before a jury if given a chance to offer their side, in which case they'll direct their lawyer to write a response denying everything (and start preparing for a suit).

Obviously a lot of ways you could go here!
posted by Conrad Cornelius o'Donald o'Dell at 9:33 PM on September 16, 2021