Understanding the Professional Liability Claim Process: Part 2, Summons, Complaints & Subpoenas and Attorney Representation
The legal process is complex and can be difficult to understand. This series of articles is intended to give you a basic knowledge of how the liability claim process works so that if you’re ever faced with a malpractice claim, you will be better able to approach the situation.
In Part 2 of our series, we discuss what to do if you receive a summons or subpoena and how to obtain attorney representation.
Part 2: Summons, Complaints & Subpoenas and Attorney Representation
If you receive a summons, complaint or subpoena, it may make you feel very uneasy, especially if you’re unfamiliar with exactly what they are. You may find yourself unsure of your best course of action. Add in the fact that your professional service and reputation are in question and you could easily begin to panic.
Despite your uneasiness with the situation, the issue is something you must address head on with minimal delay. To get started, it’s helpful to understand the meaning of the legal papers with which you’ve been presented.
A summons is a piece of paper that gives evidence that you have received the papers to which the summons is attached (a complaint against you) and have been informed that you need to respond to those papers in court by a certain date. Depending upon the jurisdiction, or court system in the area where you live, the summons and complaint will be personally served by an officer of the court; generally, by a sheriff, or via certified mail with return receipt requested.
A complaint is a list of the events that the claimant (your patient or client) is declaring against you, and an allegation that something you have done (or did not do) was negligent. The statements made in the complaint are simply allegations. The claimant will have to prove them in a court of law in order to recover any damages from you.
A complaint is generally set out in “counts,” or the different ways in which it is alleged that you have been legally negligent. In order for the claimant to be awarded any compensation, only one of the counts in the complaint needs to be proven. While the statements in a complaint are only allegations and not facts, there are rarely any penalties made against claimants who make false allegations in a complaint.
A subpoena is a document that subjects you to the jurisdiction of the court. You may be directed to produce documents or appear in person at a deposition or trial. Generally, when you receive a subpoena, you are not a defendant in the case at that time, but you could become a defendant later. This is why it is very important to obtain an attorney when you are acting under a subpoena. Your attorney will advise you in what to do or say and steer you clear of saying or doing things that could encourage the claimant to sue you and bring you into further litigation.
If you receive a subpoena that requires you to appear in court at a trial or deposition, again, it is imperative that you be represented by an attorney, even if you believe you did nothing wrong. The legal world is difficult to navigate and you need assistance to ensure that your rights are properly protected.
If you are insured through the Lockton Affinity program, one of the benefits of your Professional Liability Insurance is attorney representation. Upon receipt of a subpoena, contact Lockton immediately and our claims team will start the liability claims process. The insurance company that underwrites the insurance will assign an attorney experienced in handling health care malpractice cases. You may suggest an attorney you would prefer to work with, but the underwriters ultimately have the final say on which attorney will represent your case.
Once an attorney has been assigned to you or otherwise obtained, the “discovery process” will begin. We will discuss this process in Part 3 of our series on understanding the Professional Liability claim process.
Our article series on understanding the legal process includes these informative topics:
Part 1: License/Certification Scrutiny
Part 3: What is the discovery process?