Med Mal 101: Back to Basics

Med Mal 101: Back to Basics is 12-part series produced by Friday, Eldredge & Clark. Written by the attorneys in the Medical Malpractice Group, the content is designed to give physicians and other healthcare providers information they need to know about malpractice litigation.

Why Back to Basics

In a recent study published in The American Journal of Surgery, the majority of general surgery residents surveyed felt that they were not aware of resources available to them in case of litigation.[1]

This is an unfortunate statistic since according to the American Medical Association, one in three physicians have been sued at some point in their career, and nearly half of physicians age 55 and older reported having been sued.[2]  

With this series, we will provide medical personnel practicing in Arkansas with a general overview of the legal process. We hope to dispel some common myths and to aid in a better understanding of what actually happens when a medical care provider is sued for malpractice. 

These articles are intended to provide general educational information only and cannot take the place of experienced legal advice.

Part 1 of 12: How a Lawsuit Gets Started

When a patient sues a medical care provider for malpractice, the patient must initiate the lawsuit by filing a formal document called a “complaint.” There are some exceptions for cases involving children, but a complaint generally must be filed within two years of the date of alleged injury. A complaint must include information about who is bringing the lawsuit (the “plaintiff”), the parties sued (the “defendants”), the court where the case is filed, and “facts upon which relief can be granted” under Arkansas law, which is typically a brief recitation of the errors alleged. 

When a complaint is filed with the court, a summons is issued which provides notice to the defendants of the lawsuit. The plaintiff is required to formally serve all defendants with a copy of the summons and complaint within 120 days from the date the complaint was filed with the court. Service is usually accomplished by mail or by personal delivery via a process server. 

Once a defendant is served with a summons and complaint, he or she is required to file a formal response called an “answer” within 30 days of service. In this document, the defendant is required to admit or deny the allegations set out in a plaintiff’s complaint. If a defendant fails to file a timely answer, a default judgment may be entered and could preclude a defense. 

For this reason, it is very important for medical care providers to immediately notify their insurance carriers and attorneys as soon as they are notified about a pending lawsuit. 

Next month, Part 2 of our 12-part series will focus on the Arkansas rules governing service of a summons and complaint.  Click here to view the full schedule. 

The information was written by the attorneys in the Medical Malpractice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Medical Malpractice Attorneys.

[1] Beiqun Zhao, Luis C. Cajas-Monson, & Sonia Ramamoorthy, Malpractice Allegations: A reality check for resident physicians, 217 American Journal of Surgery 350-355 (2019).

[2] Kevin B. O'Reilly, 1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit, The American Medical Association (Jan. 26, 2018), www.ama-assn.org/practice-management