Filing the Midwifery Negligence Lawsuit - Part 2

Basic Steps In Civil Litigation

The type of legal case that may be filed against you as a midwife is civil litigation. This encompasses medical malpractice and personal injury. A personal injury lawsuit begins when a plaintiff (injured party) files a complaint against a defendant (the party deemed responsible for the injury). The plaintiff, in filing the legal action, is seeking compensation for an injury and/or damages allegedly caused by a defendant. Every State has specific standards and procedures that direct how a case will proceed.

Step One: The Summons and Complaint

This is the first document filed with the court and marks the beginning of the lawsuit. Most States have three seperate court systems that will accept the filing. The two most common courts for adjudicating personal injury lawsuits are the State District Court and/or the Federal District Court for the particular State e.g. Federal District Court for the District of Colorado.

A Complaint will include: The identity of the parties, the legal basis for the court’s jurisdiction over the lawsuit, the specific legal claims, the facts related the the claims. (See Part 1 – Filing the Medical Negligence Lawsuit)

At the end of the complaint, there is a section titled “prayer for relief”, which will describe what the plaintiff is asking for and what the plaintiff wants the court to do, including the amount of damages that the plaintiff is seeking or simply to ask the court to award an appropriate amount at a point later in the trial.

Step Two: Answer

After the complaint is filed and served on the defendant (you), she must respond within a specific amount of time. This time frame will vary depending on the court, but is usually about 21 days.

The defendant’s response is called the “answer”. This document addresses each paragraph of the plaintiff’s complaint by ‘admitting’ or ‘denying’ the claims made in each paragraph. An answer may also contain specific defenses which are legal statements put forth by the defendant, describing why they should not be held liable for the plaintiff’s damages.

Sometimes, a defendant will assert claims of their own against the plaintiff. This is known as a “counterclaim”, and it may be properly contained in the answer.

Step Three: Discovery

Once the documents above have been filed, the parties begin to request various forms of evidence from each other. The point of discovery is to ensure that both parties have access to all relevant information pertinent to the lawsuit. Each party must make a formal request for the information that they are seeking. For personal injury cases, the following procedures are used to exchange information and documents:

- Interrogatories: These are specific questions submitted by one party to the other. The responding party must answer interrogatories under oath and in writing.

- Requests For Production of Documents: Similar to interrogatories and instead of questions, one party will ask the other to produce copies of documents in their possession, deemed relevant to the case.

- Requests For Admission: The parties may ask of one another to admit or deny any material fact.

- Depositions: At a deposition, the parties or any witness may ask the other questions. The party being deposed must answer questions orally while under oath. The deposition is recorded by a court reporter and may be recorded on videotape. These proceedings are usually done in an attorney’s office with representatives of all the parties in attendance. For any disagreements of fact or procedure, a judge may be contacted by phone to resolve issues law.1

- Physical Examination: If a party has a condition which is at issue in the case, a mental or physical examination is authorized by the court.

Step Five: Pre-trial Negotiation or Settlement

Trials are expensive, time-consuming, and stressful. Responsible attorneys will attempt to resolve a case before it gets to trial. Once discovery has been completed, attorneys in a case will usually discuss settlement. Settlement negotiations may include written offers and counteroffers, or may be resolved by counsel over the phone.

If the lawyers in a case cannot resolve it by communicating with each other, they may hire a neutral party (frequently retired judges), to help. The neutral party is known as the Mediator, and he/she will help the parties to come to an agreement regarding resolution of the case. The mediator has no power to force the parties to reach an agreement or settlement.

Arbitration is an adversarial proceeding where the parties select a neutral party, arbitrator, to resolve the dispute. Arbitration resembles a trial proceeding and the parties present evidence and argue their cases to the arbitrator, who will then decide which party wins. Once the parties agree to arbitration, they may not appeal an arbitrator’s ruling to a court.

Discovery is the pretrial phase in a lawsuit where each party investigates the facts of a case, utilizing the rules of civil procedure and obtaining evidence from the opposing party and others. Under the laws of the United States, civil discovery is broadly applied and parties to a lawsuit can ask for any material which is reasonably calculated to lead to the discovery of admissible evidence. This is a broader standard than just obtaining relevant evidence, because it allows for exploration of materials and testimony that may not be directly relevant ,alone, but could lead to the discovery of other evidence that would be relevant. 2

Discovery is not without some limits. Certain information is protected from discovery, including that which is privileged such as: attorney-client communication; work product of the opposing party; trade secrets; and conversation between spouses (marital privilege). Various other types of information may, also, be protected depending on the type of case and the status of the parties. As an example, juvenile criminal records, and certain medical and psychiatric records, may be deemed privileged.

On completion, copies of all the depositions may be sealed, and used later at trial for purposes of impeachment or refreshing recollections of a party or witness.

1. Enjuris. Finding answers after your accident, pgs 1-2

2. What is Discovery in a Civil Case? - HG. Org. https://www.hg.org/legal-articles/what- is discovery-in-a-civil-case-30930.

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