Once the investigation phase of the litigation is complete, counsel will meet with his clients to discuss the next step, the filing of a Complaint. It is important to determine which is the appropriate venue/location for the action to be filed. Frequently more then one venue is available to the plaintiff. Determining the proper venue is a critical phase of the litigation.
Another critical phase of the Complaint is to determine the proper parties to be named on the Complaint. In the case of a minor plaintiff, a disabled adult or a wrongful death, the Complaint must be brought in a representative capacity. That means someone from the family must be named the nominal plaintiff in the case. The nominal plaintiff is primarily for the purposes of the litigation. That person will sign documents, answer interrogatories, appear for deposition, etc. The nominal plaintiff does not take any priority with regard to the distribution of the assets. Distribution of assets is a totally different issue. That discussion will come in a later blog. However, the party plaintiffs are usually the individual patient, his/her spouse, his/her children in the case of a decedent or a family member to serve as representative of the estate.
If the patient is an adult and capable of handling his or her own affairs, then the individual patient is named the plaintiff. y.
The party defendant is also a critical issue. In medical malpractice cases that usually means the defendant doctor, the defendant hospital, the defendant healthcare or clinic, the health care provider, the employer. Frequently a doctor is a part of a group and both the doctor and his group are named as defendants. Usually a clinic is part of a bigger hospital group and both the clinic and hospital group are named as defendants. It is important to determine who the employers are of the physicians because they must also be named as defendants.
Once the facts are determine the attorney must decide the theory of liability. That means an expert must tell the plaintiff what the standard of care is and what the doctor, hospital, or health care providers should have done under the circumstances. Malpractice is the doing of something that shouldn’t be done or the failing to do something that should be done. Accordingly, the standard of care must be determined before any deviations from the standard of care can be determined. The plaintiff’s expert, who is familiar with the facts and the medical theory, will advise counsel regarding the standard of care and any deviations from it. The deviation from the standard of care means the doing of something that should not be done (e.g. doing surgery that was unnecessary) or failing to do something that should have been done (e.g. providing CPR to a patient having an arrest. The failing to perform CPR under those circumstances could be negligence or malpractice).
The plaintiff must also allege in the Complaint that the negligence caused or contributed to cause the damages.
Finally, the plaintiff must allege damages: harm, injury, or death to the plaintiff. Upon filing of the Complaint, a Report of Reviewing Health Professional must be attached to the Complaint. This Report of Reviewing Health Professional must be prepared by a physician familiar with the facts and medicine in the case.
Once the case has been reviewed, the Complaint has been drafted and the Report of Reviewing Health Professional is attached thereto, the Complaint is ready for filing.