Public Health Law Map - Beta 5 - Medical and Public Health Law Site

a) Service of Process
One distressing part of litigation is that someone comes to the defendant’s office—a
police officer or sheriff in uniform—and demands to hand the health care
practitioner 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 medical care practitioner 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.
b) The Plaintiff’s Complaint
c) The Defendant’s Answer
The defendant must file an answer to the complaint within a certain period of time,
usually 20 days or less. The answer tells the court in what ways the plaintiff’s prima
facie case is defective and asserts any affirmative defenses. This is also the time to
object if the case has been brought in the wrong court. In some states, the
defendant may file a denial of all of the plaintiff’s allegations without addressing
the specific issues raised by the plaintiff. This is called a general denial. The
defendant may also deny the plaintiff’s allegations specifically. The advantage of
specifically addressing the plaintiff’s allegations is that it personalizes the case for
the judge. If the defendant is in the right, it is better for the judge to see the facts of
the case. For example, assume that the defendant has been sued solely because his
name appears on the plaintiff’s medical records. If the defendant did not treat the
patient and did not have any legal duties to the patient, then it is better to explain
this than to file a general denial. It is frustrating for both the plaintiff’s attorney and
the defendant physician to fight a lawsuit for years, only to find at deposition that
the plaintiff would have dismissed the case earlier if the defense attorney had
explained the situation, rather than relying on a general denial.
2. Civil Discovery
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