“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?
What to Do
- Call your insurance carrier and begin the process of establishing a “claim.” They will speak with you about the case and find you an attorney. If you don’t know who your insurance carrier is or how to contact them, ask your employer (avoid revealing too much if they are a possible co-defendant with separate insurance). Your insurance carrier will advise you on your next steps and answer your questions.
- Obtain a lawyer you trust. If you have a particular attorney in mind, tell your insurer. Otherwise, the insurer will help you find one. Make sure an experienced partner is at least peripherally involved in overseeing your case.
- Get a book. There are numerous books on malpractice litigation written for doctors. Go online, read the reviews, buy one or more, and read them. You will find that this normalizes the experience, and it arms you with knowledge to lessen your anxiety.
- Talk about it. To reiterate, you should not face this alone. Confide in friends or family. If your hospital has a peer support group, utilize it. If you know someone who has been through litigation, call them. And if you have a history of substance use, talk to a confidante or sponsor as this is a very high-risk time for relapse. Please be proactive in getting extra support.
- Take care of yourself. Make time for yourself to decompress away from work and do your best to exercise, eat well, sleep, and spend time with meaningful people in your life. If it means saying no to extra duties at work, say no for now.
What Not to Do
- Do not access or alter the chart. With electronic charts, it’s easy to see who accessed the chart and when. Your lawyer will be obtaining all the relevant charts for you as part of the discovery phase (which I will discuss in a future column).
- Do not contact the plaintiff or their family. You may be tempted to speak with them in person. At this stage, do not directly contact them. Everything goes through the attorneys, no exceptions.
- Do not make any notes about the case that are not specifically addressed to your attorney. Your attorney or insurance carrier may ask you to write down everything you remember within their confidential “attorney-client privilege” bubble, but do not keep private notes.
- Do not despair. This is a long road, but it’s been well traveled by many excellent physicians. You may be angry because you feel you did everything right; you may be guilt-ridden, feeling you could have made different choices. In either case, many of us have been in your shoes, and these reactions are expected and justified. It’s time we told you so.
Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert School of Medicine of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”