If your patient sues in small claims court

September 16, 2005

The patient probably hopes you'll consider the suit an annoyance, and either ignore it or agree to a quick settlement.

A. By choosing to sue you in small claims rather than state court, this patient probably hopes you'll consider the suit an annoyance, and either ignore it or agree to a quick settlement. But you definitely shouldn't ignore it, and don't be too quick to settle, either.

The first thing to do is to notify your insurance company, since most carriers will provide a legal defense and cover small claims judgments in malpractice cases. If you don't, and the judge rules against you, the carrier could deny coverage for any judgment.

The small claims process varies from state to state, but there's usually a single judge with no jury and no witnesses. Dollar limits for claims range from $1,000 up to $15,000, depending on the jurisdiction. These courts are typically informal, designed to make the legal process accessible and affordable for individuals and small businessmen who might otherwise be unable or too intimidated to pursue litigation on their own. The judge usually asks the plaintiff and the defendant to simply "Tell us your story in your own words."

Although many defendants do represent themselves ("pro se") in small claims court, doing so without legal advice or representation in a malpractice action would indeed be stupid. Most small claims courts allow the parties to be represented by their attorneys, and if yours does, it's worth taking advantage of the opportunity. While these courts may be informal, your case could involve complex issues of jurisdiction, rules of evidence or procedure, and statutes of limitations.

An attorney-either your carrier's or your own-can deal with those issues better than you can. If the trial date conflicts with the demands of your practice, for instance, he can request a postponement. If the patient has filed the suit after the statute of limitations has expired, or if she repeatedly fails to show up in court, or if she has no expert opinion to back up her claim, your attorney may get the case dismissed. If you lose the case, he may be able to appeal the judge's decision to the state court.

Your attorney can also help you prepare your defense and gather expert opinions to support it. Since small claims judges may be unfamiliar with clinical details, your own medical testimony may be crucial. If it's not convincing, the judge in a complex case might decide to compromise and "split the difference," awarding the plaintiff $1,500.

As with malpractice cases in state courts, any payment to the patient by your carrier on your behalf must be reported to the National Practitioner Data Bank. Even if you settle for only $1,000 to make the case go away, that sum must still be reported to the NPDB.

The author, who can be contacted at lj@bestweb.net, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com.