“They showed up at my door to serve me. … I was in my pajamas.”
Explore This IssueACEP Now: Vol 38 – No 10 – October 2019
“I was at home, getting ready for Christmas Eve; my children were two and five, and they came to my door.”
“I was served by a sheriff at work, in front of my co-workers…”
—physician interviews, “Doctors and Litigation” podcast
Receiving official notice of a lawsuit, or being “served,” is an event most physicians dread. The impact can be staggering; most physicians never forget when and where they were first given notice. One physician described it as feeling like “being hit in the head with a two-by-four.”
Here are some tips for making it through the moment of being served and what you should (and should not) do soon afterward.
The Basics of Being Served
“Service of process” is the mechanism by which, in civil litigation, one party officially notifies another that they have filed a “complaint” (lawsuit) against them. You, the defendant, are expected to respond to the complaint within a specified time frame; this will happen later via your attorney. Failure to respond results in a default judgment against you. Every jurisdiction has its own rules on how you may officially be given notice; it is crucial that you are informed in an official manner as part of constitutionally guaranteed due process.
In some areas, being served can be as simple as receiving a certified letter. Elsewhere, you may be served in person with a formal notice from the court establishing its jurisdiction in the matter, known as a “process server.” A uniformed sheriff also might also deliver the notice, which is a particularly stressful method; be it at work or home, you will likely have no warning that they are coming.
Some plaintiff’s attorneys time their notice for maximum impact, such as on a holiday. Emergency physician Mark Plaster, MD, wrote about being served by a sheriff during Thanksgiving dinner in his introduction to How to Survive a Medical Malpractice Lawsuit by Ilene Brenner, MD. One physician I spoke with described being served on Christmas Eve with her small children beside her; another was served shortly after her father’s funeral (an event known by the small-town attorney).
The notices themselves are often jarring and accusatory in tone. This is no accident. Plaintiff’s attorneys are aware of the distress this process causes, and they leverage it. However, sometimes it is apparent that attorneys are not clear on how exactly you harmed the patient in question. Many lawsuits are hastily filed before the statute of limitations runs out, and the arguments are fleshed out later. Either way, the notice is their opening move in a long chess game, crafted to wear you down to where you would gladly settle once given the opportunity.
Recognizing their manipulation as a deliberate strategy is step one in gaining back your equilibrium.
However, that is a tall order. Regardless of merit, the very accusation of malpractice is enough to cause most physicians significant distress. Anxiety, sleeplessness, and even panic are common, particularly if the legal world is a looming unknown or the case involves a poor patient outcome or death.
Do not isolate yourself. You are absolutely allowed to confide in friends and family. You may be told “not to talk about it,” but there is no actual law prohibiting discussing the medicine with others. However, you may be asked under oath at deposition who you’ve discussed case details with, and then they could be deposed, so it’s best to focus on your feelings and the legal events and to keep any discussions about the case itself vague and hypothetical.
Once the complaint is in your hand, what do you do?