After all, we are a civilized society who respects the letter of the law.
We abide by rulings from a court of law.
Courts in New York are set up to interpret the laws when there are disputes.
A civil lawsuits involving accident cases, medical malpractice cases and wrongful death cases are often resolved privately before trial. However, a small percentage of cases that cannot be resolved between the parties must then go to trial in order to resolve the issues.
The next issue to be resolved is, did that wrongdoing or carelessness cause your injury?
If the answer is yes, the jury must then determine how much compensation you are to receive for all the harms and losses you suffered because of someone else's carelessness.
The legal system allows someone who believes they have suffered injury because of someone else's negligence to bring a lawsuit seeking compensation for their injuries.
There are very specific procedures and rules the litigants and attorneys must follow in order to exercise those rights.
Failing to follow the correct rules and regulations for starting a lawsuit and specifically, how the lawsuit is actually started, can result in many headaches for both litigant and the attorney.
Let me give you an example...
Your attorney's research reveals that the driver who hit you lives in Manhattan.
In order to properly start that lawsuit the allegations in your lawsuit must be delivered to the person you are suing, to put them on notice of this lawsuit.
Without going into the details of exactly how these papers must be delivered, if the person delivering those papers inadvertently delivers it to the wrong person, that could have devastating consequences for you and your case.
Let's shift our attention to a medical malpractice case.
A medical expert has reviewed all of your records and confirmed that (1) there was wrongdoing, (2) the wrongdoing caused injury and (3) that your injuries are significant or permanent.
Two documents, known as a summons and complaint, must be prepared in order to start your lawsuit.
The summons is a document that puts the person being sued on notice of the lawsuit. It also informs him how much time he has to answer the allegations.
The complaint lists specific and general allegations about what was done wrong.
Those documents must then be filed in the court house in the county in which this case is being brought. That could be in Nassau County, New York County, King's County, Queens County, Bronx County or any of the other counties within the state of New York.
For example, if the wrongdoing happened in Brooklyn and you live in Brooklyn, then you will likely be bringing your lawsuit in Kings County.
If the wrongdoing happened in Manhattan, and the doctor's office is in Queens, you would unable to bring a lawsuit in the Bronx.
After filing the lawsuit papers with the clerk's office in the county where you are bringing the lawsuit, you are then given an identifying number known as an index number. That number identifies this lawsuit that will stay with it for the next 2-3 years as this case winds its way through the court system.
The next step in the process is that those lawsuit documents, or at least a copy of them, must now be delivered to the people you are suing.
By the way, in case you did not already know, the person who is bringing a civil lawsuit is known as the 'plaintiff'.
The person who is being sued is known as the 'defendant'.
Failing to follow the specific rules about how your lawsuit papers are delivered to the people you have sued will cause significant headaches and could be the kiss of death for your case.
The best way to ensure that the people you have sued are aware of this lawsuit is to deliver the documents personally. That means literally handing it to them.
What happens if the person delivering the papers cannot correctly identify them and hand them these papers?
There is a legal procedure known as “substituted service” which allows the papers to be mailed to that person's last known address or possibly their office address. Another alternative is to file the papers with the Secretary of State who will accept papers for many businesses that have authorized them to accept lawsuit papers instead of receiving them personally.
Okay, let's assume for the moment that the doctor you are suing receives the lawsuit papers in the proper fashion.
Let's say for our hypothetical scenario that the doctor is personally handed these lawsuit papers and there is no question he has received them.
What happens if the doctor knowingly recognizes that lawsuit has been started, but fails to notify his medical malpractice insurance company who insured him about this lawsuit?
What if he thinks that by ignoring the lawsuit and failing to answer the allegations, it will somehow go away on its own and be forgotten?
The answer is that none of those options are useful or helpful.
In fact, if the doctor ignores the lawsuit, believing they will go away on their own, that is probably the worst decision he can make.
What that means is that once the lawsuit is started and the doctor has been notified that the patient has brought a lawsuit, the clock then begins to tick about when he must serve an answer to the allegations.
If the doctor does not reply to those allegations within a specific time, then bad things can and will happen to the doctor's right to defend this case.
If you've ever heard the term “the team won by default” that's exactly what will happen in this scenario.
Imagine the Yankees are playing the Mets at CitiField Stadium. If the Yankees failed to show up on the day they are scheduled to play, the Mets get an automatic win by default.
If an injured patient brings a lawsuit and properly delivers the lawsuit papers to the doctor and the doctor fails to answer those allegations within a specific time, then the patient will get a default win simply because the doctor failed to show up to the lawsuit.
Does that end the litigation?
No it does not.
Remember, in the civil lawsuits, we first must determine who, if anyone, is legally responsible for your injuries. If the other side fails to show up, then you get an automatic win saying that the other side is automatically responsible for your injuries.
What is yet to be decided is the amount of compensation that you are going to receive.
When the doctor ignores your lawsuit and does not answer the allegations within a specific time period required by law, then we must apply to the court for a default.
Although you would think it would be automatic, we actually have to go through a process where we have to ask the court for permission to obtain a default. If the judge agrees with us, then we will obtain an order confirming the doctor has defaulted. Then we can enter a judgment in the county clerk's office confirming that we have received a 'default judgment' against the doctor.
Many times this request is an emergency wake-up call for the doctor to then forward the papers on to his insurance company.
Assuming the doctor reacts to this request to the court, his lawyer will then ask the court for forgiveness and claim it was mere inadvertence to explain away why the doctor did not answer the allegations in a timely fashion.
The doctor's attorney will ask the judge not to allow the default to take place and instead ask for permission to file a late answer so that the lawsuit can proceed forward with discovery.
Now the doctor is compounding his problems.
You see, if the doctor fails to notify his insurance company of our request for a default, then the judge will likely give us a default judgment which is a piece of paper saying that we automatically win the issue of who is responsible for your injuries. In this case, the doctor would be fully responsible.
The only issue left to be decided then is how much compensation the doctor must pay you for all of the injuries you received because he violated the basic standards of medical care.
The judge will then schedule a trial to discuss all the damages and all the medical testimony necessary in order to explain the true extent of your injuries.
It is most often held by the judge alone.
That's not to say there cannot be a jury evaluating damages, but most often in New York the judge will conduct the trial and at the end, make a determination about how much compensation an injured patient is to receive.
Once the judge determines that you are legally entitled to receive a certain amount of money as full and fair compensation for all of the injuries you received, does that mean that the doctor will automatically write a check to you?
The answer is no.
This is known as a judgment.
We now have to find a way to enforce this judgment.
One of the first steps that occurs once we have received this piece of paper is to file it with the county clerk.
This makes it public so that if someone were to do a background check on the doctor to see whether there were any judgments against him, this information would come up during such a search.
Then, we have to try and identify what assets the doctor has.
A detailed and thorough background investigation must be undertaken in order to identify if the doctor has any assets and if so, where they are.
It might be bank accounts.
It might be stock.
It might be real estate.
There many things that go into trying to identify what assets a person has in order to enforce a judgment.
It hasn't and it's highly unlikely that by delivering the court order to the doctor that he is simply going to now acknowledge the lawsuit, acknowledge and recognize the judge's order and simply cut a check for the amount the judge says he must pay.
Trying to enforce a judgment is often fraught with many obstacles. Identifying someone's assets can also be a challenge.
Even if you establish that the doctor is working and employed by a medical group or a hospital, that judgment must then be delivered to his employer in an attempt to obtain part of his wages for each and every paycheck he receives.
That is known as garnishing his wages.
It is also an embarrassing moment for the doctor as his employer then becomes aware of the fact that a lawsuit was brought by a patient and now he has a judgment against him which must now pay over the course of many years out of his own pocket.
Ironically, if the doctor had done what he should have done in the first place, which is to notify his liability insurance company about this lawsuit, then his insurance company would have hired an attorney for him in order to defend the merits of this case.
Since the doctor did not cooperate by notifying his insurance company of this lawsuit, and if you now try and get them to pay for this judgment, they will turn around and deny his claim and say that he failed to cooperate in accordance with the rules of his insurance policy.
That means that any money that must be paid to the injured patient will now come out of the doctor's own pocket personally.
There are some instances where the doctor will have to pay a percentage of his income on a weekly or biweekly basis in order to try and satisfy the judgment and repay the injured patient.
In other instances, there have been doctors who have simply declared bankruptcy in an effort to avoid having to pay out a large judgment despite the fact that a court has determined they are legally obligated to do so.
The appropriate thing for him to do is to simply send a copy of the lawsuit papers to his medical malpractice insurance company in order to allow them to hire a defense attorney and to submit an answer to the allegations within the correct time period.
Only by doing those things can the doctor take advantage of his insurance coverage for this incident and now having an attorney to represent his interests.
Each side is supposed to be fully represented and the case is supposed to be resolved on the merits, either through settlement or by a jury verdict.
When one side or the other fails to follow the rules that have been set up for years and years, the outcome is always fraught with headaches and legal rulings that could have all been avoided had they done what they should've done at the very beginning of the case.