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Making a Claim

When an aggrieved person seeks legal counsel, the attorney first determines if there is a legally redressable harm. If there is, the attorney will usually contact the potential defendant and try to negotiate a settlement before filing a lawsuit. To encourage this informal resolution of claims, some states require that defendants be notified before a lawsuit is filed. Unfortunately, few medical malpractice claims are resolved prior to the filing of a lawsuit. Physicians contacted by a patient's attorney must refer the plaintiff's attorney to their medical malpractice insurance carrier. They should encourage their carriers to evaluate the case seriously before reflexively refusing to work out a settlement with the claimant. If a physician believes that the claim has merit, it is easier on all parties to resolve the claim before a lawsuit is filed.

One distressing part of malpractice litigation is that someone comes to the physician's office--a police officer or sheriff in uniform--and demands to hand the physician personally the documents alleging wrongdoing. This is called service of process, and it begins the timetable on the various parts of the lawsuit. The papers that begin the lawsuit, as well as papers that announce certain other critical events, are served personally to ensure that the party being sued is notified of the lawsuit. The ignominy of being served personally is preferable to missing a deadline that can irretrievably compromise a defendant's legal rights.

Defendants are always advised to accept service politely; process servers have no interest in the litigation, and there is no justification for vilifying them. There is also a risk to dodging service. Dodging service in the office may result in being served at church, the country club, or another acutely embarrassing situation.

A physician who is served legal papers should call his or her insurance company and attorney--not the plaintiff or the plaintiff's attorney. A copy of the papers should be retained, with the date and time of service carefully noted. Once the defendant's attorney has filed a reply to the plaintiff's allegations, most of the succeeding documents are sent to the defendant's attorney without the need for personal service.

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