1. Starr, Kristopher T. JD, MSN, APRN, CNP, FNP-C

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AS AN ATTORNEY, I have been involved in multiple personal injury matters in the trial courts of my state. Fortunately, I personally have not experienced the unnerving experience of being sued for malpractice. But some of you have. Statistically speaking, many nurses will be involved in a malpractice lawsuit at some point in their careers.1


This article is the first of a series about real-life malpractice experiences. In this series, I will cover the elements of a malpractice lawsuit: complaint, discovery, pretrial (mediation and arbitration), trial, verdict or settlement, and appeals. The purpose is to inform nurses about what to expect during a typical lawsuit alleging professional malpractice, also called medical or healthcare negligence. In this article, I will discuss the complaint. But first, some background.


Terms and conditions

When an action constituting professional negligence occurs in the healthcare field, a clock starts to run. This time period is defined by the statute of limitations, which places a deadline on a plaintiff's right to file a civil lawsuit with a trial court that has jurisdiction in the plaintiff's state. Generally lasting between 1 and 3 years, this period starts when the act constituting the alleged negligence occurs, known as the action date, or on the date the negligent act could have first been discovered using a "reasonable person" standard. This exception to the standard statute of limitations deadline is called the discovery rule or the delayed discovery rule.2 The reasonable person standard generally means uncovering the negligent act by using the means and abilities that a similarly situated person of ordinary intelligence and capabilities would employ.3


To illustrate, imagine that a surgeon leaves a surgical instrument in a patient's abdomen during a surgical procedure. The act of medical negligence, or action date, is the date of surgery. But the error might not be discovered on that day. The patient in this example might be discharged home only to return a week later with peritonitis, at which time the retained instrument is discovered and surgically removed. For the patient in our example, the statute of limitations to file a medical negligence claim would be extended for 1 week to the date of discovery.


Similar to the statute of limitations, a statute of repose may extend the time limitation on filing an action for a longer period than usual because of certain extenuating circumstances; for example, the plaintiff was a child at the time of the negligent act and could not have reasonably been aware of the injury until years later.4


Generally, if a prospective plaintiff were to show up at a lawyer's office for an initial consultation and present the above scenario, the lawyer would have the client sign an engagement agreement and obtain releases for medical information. Depending on the time available under the statute of limitations, the lawyer would then likely gather the appropriate medical records and have them reviewed for presentation to an expert reviewer; for example, a physician or nurse. The lawyer will then meet with the client to discuss the next step: filing the complaint.


Initiating a lawsuit

The complaint is the legal filing that initiates formal litigation proceedings. It has the following components.


* The complaint first names the parties. The party alleging negligence is the plaintiff. The party (or parties) alleged to have acted negligently is the defendant.


* The next section may contain an allegation of jurisdiction-that is, the area of state or federal law that grants the trial court jurisdiction to hear and conclude the matter.


* Next the complaint lists by numbered paragraphs the allegations of professional negligence.


* The complaint then requests legal relief, usually monetary damages. Given the scope of potential injury, lawsuits alleging healthcare negligence generally seek payment of general damages, special damages, costs, fees, and other relief that may be available.



Special damages are usually the costs incurred by the plaintiff due to the alleged negligent acts, such as medical costs, hospital bills, pharmaceutical costs, medical equipment, and lost wages. Special damages are readily quantifiable and may also be termed "out of pocket" costs. They are called "special" damages because they are specific to the plaintiff in the lawsuit.


General damages are another animal altogether. While special damages cover economic costs that are measurable, general damages cover noneconomic losses, such as pain and suffering, emotional distress, and loss of companionship or consortium. These injuries are not easily calculated and they may vary widely from case to case.5


Punative damages are an enhanced category of general damages that are paid in a very small number of cases. These may be awarded specifically to account for heightened negligence, sometimes termed gross negligence. The purpose of punitive damages is to punish the defendants by making them (or their insurance companies) pay large sums of money for exceptionally bad conduct.6 Some insurance policies will not cover a punitive damages award.


Filing considerations

After the lawsuit is crafted, it is filed with the court. Many states have enhanced procedural requirements for healthcare negligence cases. Twenty-nine states require a negligence lawsuit to be accompanied by a sworn statement from a licensed medical professional that verifies, generally, that he or she reviewed the complaint, is licensed, practices in the same area of expertise as the allegedly negligent professional, believes that medical negligence occurred, and avers that the medical negligence caused the injuries the plaintiff suffered.7 These procedural documents are called affidavits of merit or affidavits of support. In jurisdictions where a complaint must be accompanied by an affidavit of merit, the case may be dismissed if the affidavit is not filed either with the complaint or within a time period prescribed by statute.


Serving the complaint

Once the appropriate paperwork (complaint, affidavit of merit, court identification paperwork, and any other documents required by the local jurisdiction) are filed with the trial court, the next step is service of the complaint on the defendants. In most, if not all, states, the complaint in medical negligence cases must be directly served on the defendants themselves. Each state has rules for the service of legal papers on persons, corporations, and all manner of defendants.


Service upon a person is made by a process server in the local jurisdiction of the state where the lawsuit is filed. In some states, process is made by a law enforcement officer, such as a county sheriff. In other states, service is made by special process servers. Just as with the time period to commence a lawsuit, time limits apply for serving legal process papers on defendants. These time limits vary from jurisdiction to jurisdiction.


Once the complaint and associated papers are filed with the trial court and proper service is made on the defendants, the lawsuit is in full swing. It is at this stage that the defendants must answer the complaint. Again, time limits come into play; generally, defendants have between 20 and 30 days to answer the complaint. Each paragraph in the complaint must be answered with an admission, a denial, or a statement that no answer is required or that the answering defendant lacks information to properly answer the allegation. Should the defendant fail to deny a paragraph in the complaint, that denial could be determined to be an admission of the information contained in that paragraph.


After the complaint is answered and the answer is served on the plaintiff, the case is set for a scheduling conference by the presiding judge and a scheduling order is entered setting the time limits in the case for written discovery, disclosure of expert witness reports, oral depositions, mediation and/or arbitration, pretrial briefing, and a pretrial conference, culminating in a date for trial.


That, my friends, is how a medical negligence case gets off the ground and starts its long trek through the civil courts. In part 2 of this series, I will provide an overview of legal discovery.


Until then, stay safe and, above all, keep it legal!




1. Belk D. State rankings for medical malpractice costs and number of paid claims. [Context Link]


2. CACI No. 455. Statute of limitations-delayed discovery. 2018. [Context Link]


3. Gardner J. The many faces of the reasonable person. 2013. Many Faces of the Reasonable Person.pdf. [Context Link]


4. Goguen D. What is the difference between a statute of limitations and a statute of repose? [Context Link]


5. Special & general damages in your personal injury case. [Context Link]


6. Punitive damages for gross negligence in a personal injury case. [Context Link]


7. Affidavits of merit. [Context Link]