EXECUTIVE SUMMARY
Healthcare organizations frequently receive a notice of intent to sue. Although common, it is important to respond appropriately.
- Some states require a specific response procedure.
- Notify the insurance carrier immediately.
- Many notices of intent do not end up with any litigation.
By Greg Freeman
Receiving a notice of intent to sue is a common occurrence for hospitals and health systems, so common that it may be unclear how to respond to each one. After all, many of the notices will amount to nothing in the end, so it can be tempting to delay or even avoid a response.
In some states, the response process is dictated by law, says Bradley P. Blystone, JD, shareholder with the Marshall Dennehey law firm in Orlando, FL. Some states, including Florida, require potential plaintiffs to file a notice of intent to initiate medical negligence litigation, which must be supported by an expert affidavit, he notes.
“For Florida, whenever a healthcare provider gets one of those notices of intent, they are required to immediately turn it over to their insurer so they can be appointed counsel. The Florida Notice of Intent has specific requirements, including a 90-day investigatory period that gives the defendant time to investigate the merits of the claim and get their own expert opinion during that 90-day timeframe,” Blystone says. “If you’re in a state like Florida with a specific requirement like that, then that takes all the guesswork out. You just have to do what you’re required to do under that statute.”
While notices of intent are common, they should not be taken lightly and should not be ignored, says Christopher E. Brown, JD, partner with the Kaufman Dolowich law firm in Orlando, FL. In Florida, the 90-day investigation must be conducted in good faith, and both the claimant and the prospective defendant must cooperate with the insurer in good faith, he says. The investigation needs to determine whether there are reasonable grounds to believe the defendant was negligent in the care or treatment of the claimant and whether such negligence resulted in injury to the claimant.
“During the pre-suit period, the parties shall make discoverable information available without formal discovery,” Brown says. “Informal discovery may include, among other things, the taking of unsworn statements, the production of documents, records, or things, or physical and mental examinations.”
At or before the conclusion of the 90-day period, the insurer or self-insurer of the potential defendant must provide the claimant with a response. This response may reject the claim, make a settlement offer, or make an offer of admission of liability and for arbitration on the issue of damages, he explains.
Finally, Section 766.106(7), Florida Statutes, states that the failure to cooperate on the part of any party during the pre-suit investigation may be grounds to strike any claim made, or defense raised, by such party in suit, Brown says.
“This statute has teeth, and the failure to participate can result in sanctions against the healthcare provider,” Brown says.
Notify Insurance Carrier Immediately
The first thing to do is to report the notice of intent to your insurance carrier, says William J. Buckley, JD, attorney with the Schenck Price law firm in Florham Park, NJ.
“If you’ve got a claims-made policy, you want to make sure you’re reporting that in a timely fashion. Number two, it’s important to lock the EMR (electronic medical record) file to make sure that nobody can get into the EMR without authorization,” he says. “One of the things the plaintiff bar really looks for now is footprints in that audit trail. If they start seeing footprints after the notice of claim, it just raises an eyebrow as to who’s in there and what they’re looking for and what have they attempted to make subtle changes.”
Depending on the potential size of the claim or the validity of the claim, risk managers may do an investigation into the matter after receiving the notice of intent, Buckley says. If it seems there is clear exposure, it might be wise to try to resolve the case early before all the parties start incurring legal expenses, he says.
Receiving a notice of intent frequently triggers coverage for professional liability policies, says Richard F. Cahill, JD, vice president and associate general counsel with The Doctors Company, a malpractice insurer based in Napa, CA.
“Clinicians are strongly encouraged to advise their carrier promptly to protect their rights and help ensure that procedural safeguards are followed,” he says. “Often, counsel is appointed at the outset to confer with the insured provider and assist in planning next steps, including a determination of how best to respond to the initial notice of intent.”
Statistically, only a small percentage of pre-suit notices result in civil litigation, Cahill notes. Many of these claims are closed without payment or other action being taken and generally do not count against a provider’s loss history, he says.
Healthcare practices always should respond to a notice of intent to file a medical malpractice action, says Paul F. Schmeltzer, JD, member with the Clark Hill law firm in Los Angeles. However, the length of time that healthcare organizations have to respond to a notice of intent can depend on each state’s laws and procedural requirements.
For example, in California, a healthcare provider has 90 days to respond to a notice of intent to sue before a medical malpractice lawsuit can be filed. Michigan requires the mailing of a “notice of intent to file” claim 182 days before filing a lawsuit, he says.
“It’s wise for healthcare organizations to acknowledge receipt of the notice of intent, typically through formal written communication, to confirm that the healthcare practice is aware of the impending legal action. As part of their protocol when a notice of intent is received, the healthcare practice should immediately notify the relevant stakeholders and their legal department or counsel to make them aware of the possibility of litigation,” Schmeltzer says. “It’s also important to notify their malpractice insurance carrier as soon as possible. This is a very important step that should not be overlooked or delayed as the malpractice insurance carrier will provide valuable guidance and, in many cases, cover the legal costs or assign a lawyer to represent the practice.”
The healthcare practice then should make efforts to secure and preserve all relevant medical records and documents related to the case, including electronic health records, paper records, and any correspondence related to the patient’s care, he says. This often is the time for the healthcare practice to share these records and documents with their legal counsel so that they can evaluate the merits of the case, and the attorney can begin to develop a defense strategy and understand the legal claims asserted by the plaintiff, Schmeltzer says.
The healthcare practice also should conduct an internal review of the case to understand the circumstances that lead to the malpractice claim and identify any potential issues with the claim and the practice’s defense against it, he says. Where appropriate, the practice can obtain statements from any involved healthcare providers and staff, in anticipation of litigation.
Prior to the filing of a medical malpractice lawsuit, the healthcare practice should coordinate with their risk management team to assess the notice and implement any necessary changes or corrective actions to prevent future incidents, Schmeltzer says.
“The healthcare practice should take a proactive approach to develop communications to respond to inquiries from the media, staff, and other stakeholders,” he says. “The practice should ensure that all communication is coordinated through their legal team to avoid any misstatements that could be used against the organization in litigation.”
Also, the period of time after a healthcare practice receives pre-litigation notice of a claim affords ample time to evaluate the merits of the case and potential settlement options, and to discuss and contemplate the viability of alternate dispute resolution such as mediation, Schmeltzer says. This is the time to contemplate the valuation of the claim and to forecast how the medical malpractice lawsuit could affect the practice’s reputation, he notes.
“Importantly, the healthcare practice should take steps to ensure the safety and integrity of the patient’s medical record after receiving notice of a lawsuit. There is a real risk that any changes made to the record after learning of a lawsuit could raise questions about the clinician’s truthfulness, motives, and the quality of care,” Schmeltzer says. “Plaintiffs’ attorneys are adept at using metadata to help identify changes to patient records, such as deletions, alterations, and suspicious entries.”
Generally, notices of intent include a request for records to be submitted within a set number of days, notes Annik L. Morgan, JD, partner with the Chamblee Ryan law firm in Dallas. If the insurance carrier appoints defense counsel, the defense attorney will respond and submit the records on behalf of the organization, she says.
“This alone can be a deterrent to a lawsuit, particularly when the opposing counsel is looking for an opportunity for a quick settlement,” she says. “Additionally, once the matter is turned over the carrier — either directly or through a defense attorney — may propose a settlement prior to lawsuit, allowing for a resolution on a matter that may present a high risk for liability exposure.”
Sources
- Bradley P. Blystone, JD, Shareholder, Marshall Dennehey, Orlando, FL.Telephone: (407) 420-4406. Email: [email protected].
- Christopher E. Brown, JD, Partner, Kaufman Dolowich, Orlando, FL. Telephone: (407) 789-0230. Email: [email protected].
- William J. Buckley, JD, Schenck Price, Florham Park, NJ. Telephone: (973) 631-7849. Email: [email protected].
- Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company, Napa, CA. Telephone: (800) 421-2368.
- Annik L. Morgan, JD, Partner, Chamblee Ryan, Dallas. Telephone: (214) 905-2003.
- Paul F. Schmeltzer, JD, Member, Clark Hill, Los Angeles. Telephone: (213) 417-5163. Email: [email protected].
Receiving a notice of intent to sue is a common occurrence for hospitals and health systems, so common that it may be unclear how to respond to each one. After all, many of the notices will amount to nothing in the end, so it can be tempting to delay or even avoid a response.
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