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Wednesday, January 30, 2019
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"Med Mal 101: Back to Basics"
is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content will be delivered monthly via email and is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.
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In a recent study published in
The American Journal of Surgery
, the majority of general surgery residents surveyed felt that they were not aware of resources available to them in case of litigation.
[1]
This is an unfortunate statistic since according to the American Medical Association, one in three physicians have been sued at some point in their career, and nearly half of physicians age 55 and older reported having been sued.
[2]
With this series, we will provide medical personnel practicing in Arkansas with a general overview of the legal process. We hope to dispel some common myths and to aid in a better understanding of what actually happens when a medical care provider is sued for malpractice.
These articles are intended to provide general educational information only and cannot take the place of experienced legal advice.
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Part 1 of 12:
How a Lawsuit Gets Started
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When a patient sues a medical care provider for malpractice, the patient must initiate the lawsuit by filing a formal document called a “complaint.” There are some exceptions for cases involving children, but a complaint generally must be filed within two years of the date of alleged injury. A complaint must include information about who is bringing the lawsuit (the “plaintiff”), the parties sued (the “defendants”), the court where the case is filed, and “facts upon which relief can be granted” under Arkansas law, which is typically a brief recitation of the errors alleged.
When a complaint is filed with the court, a summons is issued which provides notice to the defendants of the lawsuit. The plaintiff is required to formally serve all defendants with a copy of the summons and complaint within 120 days from the date the complaint was filed with the court. Service is usually accomplished by mail or by personal delivery via a process server.
Once a defendant is served with a summons and complaint, he or she is required to file a formal response called an “answer” within 30 days of service. In this document, the defendant is required to admit or deny the allegations set out in a plaintiff’s complaint. If a defendant fails to file a timely answer, a default judgment may be entered and could preclude a defense.
For this reason, it is very important for medical care providers to immediately notify their insurance carriers and attorneys as soon as they are notified about a pending lawsuit.
Next month, Part 2 of our 12-part series will focus on the Arkansas rules governing service of a summons and complaint.
This is not a substitute for legal advice and should be considered for general guidance only.
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MED MAL 101:
BACK TO BASICS
The 12-month series will be delivered via email on the last Wednesday of each month.
For a complete schedule of future articles and access to previously published content,
click here.
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Medical Malpractice
Attorneys
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About the Medical Malpractice Group
When faced with a medical malpractice claim, healthcare providers require respected, experienced counsel they can trust to defend their practices and reputations. The attorneys in our Medical Malpractice Group are devoted to the defense of physicians, nurses, practice groups and hospitals in malpractice cases, which provides unique insight into the complexities of this type of litigation.
At Friday, Eldredge & Clark, we are focused on providing our healthcare clients with consistently talented, ethical and efficient representation before state licensing boards and in all stages of litigation though jury trial and appeal.
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[1]
Beiqun Zhao, Luis C. Cajas-Monson, & Sonia Ramamoorthy,
Malpractice Allegations: A reality check for resident physicians
, 217 American Journal of Surgery 350-355 (2019).
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In October 2018, a new Federal anti-kickback law (the Eliminating Kickbacks in Recovery Act of 2018, or EKRA” became effective.
This new law could have significant (even unintended) impact for providers in the substance abuse and/or clinical laboratory markets. Like the existing Federal Anti-Kickback Statute (Federal AKS), EKRA is a
criminal
statute, which provides for criminal fines and imprisonment. EKRA is a separate and distinct statute from the Federal AKS.
EKRA was enacted as one part of the Federal SUPPORT Act, which is an aggregation of numerous, separate bills / acts, including EKRA. The primary purpose of the SUPPORT Act is to legislatively attack the opioid epidemic which is certainly a nationwide crisis.
However, with regard to EKRA specifically, the new prohibitions pertain to services that may have nothing to do with the opioid crisis. In other words, EKRA applies to laboratory services, regardless of whether the laboratory services relate to matters of substance abuse.
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The information was written by the attorneys in the
H
ealth Law Practice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our
Health Law Attorneys.
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Health Law Practice Group
Whether you are a hospital, healthcare provider or a company that serves provider organizations, you know the demands on the health sector are complex. At Friday, Eldredge & Clark, our healthcare practice encompasses a wide range of legal services to address not only issues that arise in the highly-regulated healthcare industry, but also the counsel to handle the business operation needs as well.
Our healthcare lawyers have the insight, capability and experience to effectively address the complex issues inherent in the highly-regulated healthcare industry including regulatory and compliance matters, contract negotiations and preparations, reimbursement issues and audit reviews and appeals.
Our firm also represents clients in mergers and acquisitions; financing and restructuring; corporate, regulatory and strategic counseling issues; litigation defense; physician compensation and labor and employment matters.
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About the Firm
Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.
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