WHAT TO EXPECT WHEN YOU ARE EXPECTING…A LAWSUIT
Not surprisingly, health care liability claims can be notoriously complex. While these claims may take several months or years to fully resolve, as a defendant, many of your initial actions in a malpractice lawsuit can significantly impact the progression of the case. The following post outlines the first few basic phases of a health care liability claim to assist you in avoiding pitfalls before you consult an attorney or notify your insurance company.
Notice of Claim
Before a patient ever files a health care liability claim, the patient should provide written notice to each physician or health care provider (including hospitals and other institutions) that will be a defendant in the suit at least sixty days prior to filing. In addition to other technical requirements, an authorization permitting the retrieval of the patient’s medical records must accompany the notice.
While there is no explicit penalty for failure to provide notice, the rules afford plaintiffs who do comply with the notice requirement an additional seventy-five days to the statute of limitations. Conversely, if the plaintiff fails to provide notice, they are not entitled to the seventy-five day extension.
At that point, many insurance policies require you to notify your insurer as soon as reasonably possible after you become aware of a claim covered by your particular policy. The sixty day “waiting period” between receiving notice of a claim and the filing of a lawsuit is generally utilized by you and your insurer to assess and investigate the patient’s claim.
Original Petition – Filing and Service
Assuming the patient provides notice, upon the expiration of the sixty days, a patient (now a “plaintiff”) may then file their lawsuit. This is done by submitting a petition to the correct court and serving you with a copy of that petition, along with a citation (collectively referred to as “process”), which indicates when your answer is due. There are several ways to serve a petition, but the plaintiff will typically employ the use of a process server to deliver the petition to you in person. The purpose of the petition is to supply the defendants with fair and adequate notice of the underlying claims, allowing the defendants to establish a defense. To that end, there are several requirements for what a petition must contain. The evaluation of whether a petition is sufficient and complies with Texas law is best left to your attorney.
Occasionally, a plaintiff can make critical mistakes when serving a petition. Therefore, it is advisable to retain the original envelope containing the petition, and make a note of where, when, and how you received it.
This is another event which you should report to your insurer, if applicable, as quickly as possible. Notification is made even more critical in light of the fact that many plaintiffs fail to provide the pre-suit notice to defendants. Depending upon the terms of your policy, your insurer may retain counsel to defend you in the lawsuit. Virtually all insurance policies place the burden upon you, as the insured, to notify your insurance company about a lawsuit. Once you receive service of process, you or your insurer will have a limited time in which to find an attorney to file an answer on your behalf.
Responding to the Petition
As noted above, the citation will tell you when you must file your answer with the court and serve a copy of it to the plaintiff. This deadline is set forth in the Texas Rules of Civil Procedure as follows: “by 10:00 a.m. on the Monday next following the expiration of twenty days after the date of service.”
By filing an answer, you are making an appearance before the court, confirming receipt of the lawsuit, and setting forth your response to the plaintiff’s claims. In Texas, the Rules of Civil Procedure permit you to file a general denial (i.e. a broad denial to all of the plaintiff’s claims); however, there are certain defenses that must be specifically included in your answer in order to raise them later. An answer should also include a jury demand, in the event you wish a jury to hear the case.
If you fail to file an answer before the deadline, the plaintiff can ask the court to render a default judgment in the plaintiff’s favor. While you can generally request that the court vacate or set aside the default judgment by filing a motion showing you had an appropriate excuse, this step is easily avoided by timely filing an answer.
Within 120 days after you file your answer, a plaintiff must serve you with one or more expert reports explaining in detail how you were negligent and how your alleged negligence caused the plaintiff’s damages. The plaintiff is also required to include the expert’s curriculum vitae with his/her report. There are several other requirements pertaining to the contents of the expert report and the qualifications of the expert, which are beyond the scope of this particular post. In general, be aware that a plaintiff must serve each defendant with these reports within the statutorily mandated deadline. Failure to do so compels the court to dismiss the case.
In sum, being aware of the aforementioned steps can help you understand the basic process of how a lawsuit begins and how to avoid legal issues in the early stages of defending yourself against a healthcare liability claim.
 Tex. Civ. Prac. & Rem. Code § 74.051(a) (2013).
 Id.; see also § 74.052
 Tex. R. Civ. P. 21a.
 Tex. R. Civ. P. 99(c).
 Tex. Civ. Prac. & Rem. Code § 74.351(a).