Practice Tips

When a patient experiences an unanticipated and bad outcome, a patient complains about their care, you receive a request for medical records from an attorney on behalf of a patient, you receive a claim from a patient or a patient's attorney requesting money, or you are served with a formal claim in the form of a Complaint, Notice of Claim, or other formal document commencing court proceedings, the life of a malpractice claim begins. Any of the events mentioned above should be reported to your insurer as soon as you become aware the event has happened.

A malpractice claim will follow a generally recognized process with slight differences depending on which state the claim originated.

• Statutes of Limitations: Each state has a different statute of limitations, which will determine the amount of time a patient or family member has to file a claim after the event.
  • Maine – Three years from the negligent care or three years from the discovery of harm if caused by a foreign object left inside the patient. Minors must file suit within six years after the negligent care or within three years after the minor reaches the age of majority, whichever comes first.
    
  • New Hampshire – A patient has three years from the negligent care or three years from discovering that the negligent care caused injury if that injury's cause could not have been discovered sooner. Minors must file a suit within two years of reaching the age of majority.
    
  • Vermont – Three years from the negligent care or two years from discovery of the resulting injury if that injury arises after three years have passed and could not have been discovered sooner but in no event later than seven years from the date of the negligent care. An additional two years is extended from the discovery of a foreign object left inside a patient, so potentially as long as nine years. The limitations periods do not begin to run against a minor until after the minor reaches the age of majority.
    
  • Massachusetts – Three years from the negligent care or from when the patient learns or reasonably should have learned that that care has harmed them. Minors younger than six years of age must file suit by their ninth birthday. Minors six years and older have three years from the date of the negligent care to file suit. Except in the case of a foreign object left inside a minor patient, no suit can be filed by a minor more than seven years after the date of the negligent care.
    
• Unanticipated and Bad Outcomes to Report as Incidents: Listed below are some unanticipated and bad outcomes that should be reported to your insurer as soon as you become aware of them. This list is not all-inclusive, and if you are unsure about reporting an incident, you can contact your insurer for guidance.
  • Patient injury during a procedure
  • Significant medication error
  • Patient fall with injury on your premises
  • Misdiagnosis/untimely diagnosis, particularly carcinomas
  • Cardiac arrest or death following normal outpatient exam or ED visit
  • Returns to the OR
  • Death of patient soon after your care
  • Wrong site, wrong patient, wrong procedure
  • Suicide attempt following psychiatric treatment
  • Lack of informed consent
  • Newborn injury or death
  • Maternal injury or death
• Reported Incidents Intake: Events you report to the insurer are recorded as "incidents" and evaluated to determine whether an early investigation or other action is warranted. If the incident requires no action, then the file is closed unless and until further action is warranted.
• Reported Claims Intake: Attorney or patient letters requesting money and Complaints, Notices of Claim, or other formal documents commencing court proceedings that the insurer receives from you or from third parties are recorded as "claims" by the insurer and evaluated for standard of care, causation, and damages issues. Initial dollar amounts are set as reserves approximating the risk exposure posed by the claim and the early costs to defend it. The claims representative commences an investigation, and if required, defense counsel is retained to act as your attorney.
• Claims Defense: Defending you in a claim includes a review by medical and other experts, witness interviews, deposition testimony, and information and document exchanges with the opposing attorney called "discovery." After the investigation and, if a pending lawsuit, court-supervised discovery of the evidence, the determination is made whether to settle or continue defending you through a trial.
• Screening Processes: If your jurisdiction has a pre-litigation screening process, then the claim cannot proceed to open court in some instances or to a trial in others until evaluated by third parties associated with the courts.
  • Maine – The claim is presented by formal Notice of Claim and heard confidentially by a screening panel comprised of a judicially appointed and compensated chairperson, a health care provider with expertise relevant to the claim, and an attorney. The panel reviews evidence offered in a one-day mini-trial and decides whether (i) the provider breached the standard of care, (ii) that breach caused an injury, and (iii) the patient was at fault too. Until the panel hearing is held, a Complaint cannot be filed, and the claim cannot proceed in open court. Depending on the panel members' votes, the decisions on each question can be shown to a jury at the eventual trial.
  • New Hampshire – After the Complaint is filed with the court, but before a trial, the claim is heard by a screening panel comprised of a retired judge or another person with judicial experience who serves as the chairperson, a health care provider with expertise relevant to the claim, and an attorney. The panel reviews evidence offered in a one-day mini-trial and decides whether (i) the provider breached the standard of care, (ii) that breach caused an injury, and (iii) the patient was at fault too. The screening panel process does not delay the claim from proceeding in open court. Depending on the panel members' votes, the decisions on each question can be shown to a jury at the eventual trial.
    
  • Vermont – There is no screening process.
  • Massachusetts– Soon after the Complaint is filed with the court, but only if requested by the provider defendant, the claim is heard by a tribunal comprised of a Superior Court judge, a physician with expertise relevant to the claim, and an attorney. The panel determines on paper filings alone, without a mini-trial, whether the evidence is sufficient to raise a reasonable inference of negligence in favor of the patient, meaning there is a legitimate question of liability appropriate for judicial inquiry. If the evidence is found to be lacking by the tribunal, then the patient must post a $6,000 bond to proceed in open court.
• Settlements: If the determination is made to settle the claim, your claims representative will work with you, your defense counsel, and the patient's attorney to agree to a dollar amount that concludes the claim and terms that include confidentiality, among other protections.
• Trials: If the determination is to defend you through trial, the attorneys work with the judge to select a jury and present the evidence. As the defendant in the case, you can expect to testify on the witness stand and attend the entire trial, which can take several days to weeks. After your defense counsel and the patient's lawyer have presented their evidence, the jury answers the same questions answered by the panel above and also awards money to the patient as compensation for damages if they find you were negligent.

The preceding discussion is a simplified overview of the claims process and some of the applicable laws. It is not intended to cover all incidents or claims or to substitute for the legal advice of a licensed attorney.