Practical Tips when you're Being Sued
For anyone, being involved in a lawsuit as a defendant is an unpleasant experience. However, there are ways to make your own life, and that of your lawyer, easier. So what should you do when you receive notice that you are being sued?
Below is a summary of the steps you should take when you are served with notification of a lawsuit and what can happen if you do not follow the appropriate procedures.
Notice of a Lawsuit
Your first written indication that a lawsuit is imminent will likely be a document called a “Notice of Intent to Sue.” This is a document the Code of Civil Procedure Section 364 requires a patient who is contemplating a malpractice action to serve upon potential defendant(s) before actually commencing suit. It is sometimes referred to as a “90-Day Notice,” as the law specifies that it will be 90 days before an action is filed. This notice may arrive in the form of a letter from the plaintiff’s attorney, or it may be in the form of a legal pleading. If you receive such a notice, you should not respond to it directly. Instead, notify your insurance carrier immediately so that the proper action can be taken on your behalf.
The Commencement of a Lawsuit
Once an action has actually been commenced against you, there are typically two documents that you will receive. The first of these documents is known as a summons. The function of a summons is to notify a defendant that a lawsuit is pending against him, that he has a limited time within which to file a response, and the consequences if he fails to do so. Furthermore, a summons must provide notice and opportunity to be heard in compliance with the 14th Amendment due process clause.
The second document you will receive is known as the complaint. The complaint sets forth the allegations asserted by the filing party (plaintiff) against the defendant(s). Prior to the time these documents are served, the plaintiff, or his or her attorney, will present the summons and complaint to the court clerk. The court clerk, after verifying that these documents are procedurally correct, then issues the summons with a court seal and accepts the complaint for filing with the court.
Methods of Service of Process
To complete service of process within the State of California, the California Code of Civil Procedure Section 415.10 prescribes four basic methods:
- Personal delivery to defendant;
- Delivery to someone else at the defendant’s usual residence or place of
- Service by mail coupled with acknowledgment of receipt;
- Service by publication.
Typically, in medical malpractice actions, one of the first two methods of service is utilized in light of the fact that most medical professionals have an established place of business, and this information is readily available to the public. In addition to individual medical professionals, it is common to see a medical practice or a medical corporation named as a defendant in a lawsuit. Effecting service upon a corporation requires delivery of a summons and complaint to some person on behalf of the corporation. Specifically, service may be made upon the president, or other head of the corporation, a vice president, a secretary, treasurer, or a general manager. Service may also be made upon any person authorized by the corporation to receive service of process. This includes a person who is designated as the corporation’s agent for service of process in statements which a corporation is required to file with the Secretary of State.
A summons and complaint may be served upon a defendant by any person who is at least 18 years of age, and not a party to the action. This can include private individuals or peace officers. A plaintiff is not required to utilize the services of a peace officer or professional server to effectuate service of process.
I Have Been Served – What Now?
Upon service of a notification of lawsuit, you must immediately notify your professional liability insurance carrier by telephone and then forward all documents received by the process server to your insurer per their instructions. The insurer will then assign the case to an attorney who will contact you directly. However, as set forth below, it is critical that you notify your insurer at once as the time to respond to a lawsuit begins to run as soon as you are served with the summons and complaint. Do not set aside or ignore the documents you receive – the best action is to take action!
In order to defend a lawsuit, your attorney will file a responsive pleading on your behalf. Unless extended by stipulation or court order, a defendant must file a responsive pleading within thirty days after service of the complaint.
What Happens if I Take No Action?
If a responsive pleading is not filed on your behalf within the time allowed by law, a defendant is then deemed to be “in default.” The plaintiff can seek an “entry of default” from the court. This is the procedure that established a defendant’s default. Such entry does not happen automatically, rather, the plaintiff must request the court clerk to make such entry and the request must be supported by proper documentation.
Entry of the defendant’s default instantaneously cuts off a defendant’s right to appear in the action. After defendant’s default has been entered, plaintiff may apply for a judgment against the defendant based on such default. If a default judgment is entered, the plaintiff has effectively won his or her case and may be entitled to recover substantial sums of money from the defendant.
It should be noted that there are procedures for setting aside an entry of default and default judgment. However, it is much easier and less costly to avoid being in default. This can be done merely by notifying your insurer immediately after receipt of notification of a lawsuit. That way, your attorney will be able to file a responsive pleading on your behalf in a timely manner and you will not be subjected to the default process.
What Do I Do After I Notify My Insurer?
After you have notified your insurance carrier of the fact that you have been served, follow these guidelines until you receive further instruction from your attorney:
- Do not contact the plaintiff or the plaintiff’s attorney. Let your attorney initiate discussions with the plaintiff’s attorney.
- Have a staff member make two complete copies of your files pertaining to the patient/plaintiff, including all lab results, films, phone messages, etc.
- Do not put any legal documents in a patient’s file. Instead, start a separate file that will only contain legal documents and correspondence between you, your insurer, and your attorney.
Remember- when served with a lawsuit, you must take immediate action and notify your insurer. If you follow this simple rule, help will be on the way!