A patient who brings a lawsuit against the physician is the plaintiff, the person who seeks monetary damages for the tort allegedly committed against him. The plaintiff will hire a lawyer to represent him in court. The accused physician is the defendant, the person who must defend or explain her actions before the court. She will also hire an attorney to defend her actions and notify the malpractice insurance carrier.
Subpoenas and Depositions
During the collection of information, the medical assistant may be issued a subpoena, which is a legal document that requires a person to appear in court or be available for deposition. A deposition is a formal gathering of information during which the individual who has received the subpoena must answer questions. It is important to remember that, while giving a deposition (also called being deposed), the individual is under oath. The medical assistant is bound by law to tell the truth. To lie or omit information in a deposition is a crime, called perjury, and is punishable by law.
Another method used to gather information is a subpoena duces tecum, which requires that the individual appear in court with specific documentation, usually the patient’s medical record.
Another method used to gather information is a subpoena duces tecum, which requires that the individual appear in court with specific documentation, usually the patient’s medical record.
Trial
In preparation for a trial, attorneys for the defense and the prosecution will gather necessary information. Patient medical records and depositions from witnesses are collected. Expert witnesses are contacted to give testimony during the trial and a trial date is set by the court. The lawyers from both sides choose a jury, and the trial begins. Each attorney makes opening statements and then calls witnesses. Both attorneys are given the opportunity to question the witnesses through examination and cross-examination. Both attorneys make closing statements explaining to the jury how they proved their argument. The judge will give instructions to the jury and ask them to reach a verdict based on the evidence presented. The jury deliberates or discusses what they saw and heard in the courtroom and reaches a decision. If the jury finds the defendant (physician) not guilty, the case is dismissed. If the jury finds that the physician is guilty of malpractice, a monetary settlement is awarded.
Malpractice Insurance
Most physicians have malpractice insurance out of which the settlement and legal fees are paid in the event of a malpractice lawsuit. Many states have mandatory malpractice laws that require physicians to have a minimum dollar amount of malpractice insurance. If a physician has no malpractice insurance or limited coverage, his personal assets may be seized, depending on how his practice
is structured.
is structured.