Wednesday, February 27, 2019
"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.
Part 2 of 12:
Responding to a Complaint
In Part 1 of Med Mal 101 , we identified the parties and legal pleadings required to initiate a lawsuit. In this article, we will address what happens when a medical care provider is served with notice of a lawsuit.

The first thing to keep in mind is that actions for medical injury typically must be filed within two years from the date of the alleged negligent act. Ark. Code Ann. § 16-114-203(a). There are limited exceptions when the case involves a foreign object left in the body or where the patient was a child, for example. In those cases, the statute of limitations period may be longer.

Once a lawsuit is filed, the person bringing the lawsuit ("plaintiff") is required to provide formal notice of the case to all persons who are being sued ("defendants"). Unless there is a special circumstance that requires an extension of time, the plaintiff must serve a copy of the summons and complaint on each defendant within 120 days of the case being filed in court. Ark. R. Civ. P. 4(i). If the plaintiff fails to complete service within the 120-day period, the action should be dismissed. 

In order to satisfy due process, there are very particular requirements regarding how a person can be summoned to court. For this reason, medical care providers who are served with court papers should take careful note of how, when and exactly what papers they receive in connection with a case so that their lawyers can make sure that their rights as defendants are respected. 
Assuming a defendant is properly served with the lawsuit, the defendant must file a written answer to the complaint. An answer is a detailed legal document that will require the help of a lawyer, so it is important to obtain counsel immediately upon notice of suit. Typically, the defendant must file an answer within 30 days from service of the summons and complaint. Ark. R. Civ. P. 4. If a defendant does not timely answer, judgment by default may be entered against her or him, which may be treated as a failure to defend. Therefore, it is critical for a defendant to timely respond to a complaint. 

A defendant is required to work carefully with his or her lawyer to draft the answer to the complaint. Complaints must identify the claims made and specify facts upon which, if true, relief can be granted under Arkansas law. The defendant must answer each specific allegation in the complaint to the best of his or her knowledge. Any allegations in the plaintiff’s complaint that are not denied in the defendant’s answer are deemed admitted. Ark. R. Civ. P. 8(c). Accordingly, it is crucial for a defendant to respond accurately to each allegation listed in the plaintiff’s complaint. If a defendant is without knowledge or information sufficient to form a belief as to the truth of an allegation, he or she must state so, and it will have the effect of a denial. Ark. R. Civ. P. 8(b). 

A defendant must also set forth certain available affirmative defenses in his answer or they may be waived. An affirmative defense is an assertion of facts or legal defenses that may defeat the plaintiff’s claim, such as a violation of the statute of limitations, which was discussed earlier in this article.

Properly responding to a plaintiff’s complaint is an important part of defending a case. It is important for medical care providers to immediately notify their insurance carriers and attorneys when they receive a complaint so that the answer properly protects their rights as litigants.
Next month, Part 3 of Med Mal 101 will discuss the legal “standard of care” for physicians practicing in Arkansas. 

If you missed Part 1: How a Lawsuit Gets Started, click here.

For a complete schedule of future articles, click here.
Medical Malpractice
The information was written by the attorneys in the  Medical Malpractice Group  at Friday, Eldredge & Clark, LLP.

This information is not a substitute for legal advice and should be considered for general guidance only. 

For more information, please contact one of our   Medical Malpractice Attorneys.

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. 
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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