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You Sued Your Doctor. You Hear Crickets. He Doesn't Respond to Your Lawsuit! How is That Possible?

You sued your doctor.

For medical malpractice.

Here in New York.

He was careless.

He violated the standard of care.

His wrongdoing caused you injury.

Our medical expert confirms that.

Once we get confirmation from our medical expert, we prepare the documents necessary to start your lawsuit.

Those documents are a 'summons and complaint'.

A 'summons' alerts the doctor to the fact that he is being sued.

It tells him the timeframe in which he has to answer the lawsuite allegations.

The 'complaint' starts to detail the claims being made against him.

Once we finish preparing the summons and complaint, we have to get an identifying number from the court.

This identifying number is known as an 'Index number' in the New York State court system.

When we purchase this identifying number, we also have to give a copy of these lawsuit papers to the court clerk for filing.

This is an important milestone in your lawsuit.

Now we have a limited time to deliver your lawsuit papers to the people you sued.

Well, how exactly do we deliver your lawsuit papers?

If you think your attorney takes these documents and walks over to your doctor's office and hands it to him, you are mistaken.

If you think your lawyer walks into a hospital and goes up to administration and drops this off, you are mistaken.

Instead, we hire a service to deliver these papers for us.

This service specializes in delivering these papers.

They are known as process servers.

A process server takes your lawsuit papers and then tries to deliver them to the people you have sued. 

You should know that there are very specific rules about how these papers must be delivered.

The best way to deliver these papers is to personally hand it to the person you sued.

"Dr. Jones, I have some papers for you..."

"Hey Doc, these are yours. Have a good day..."

But not every doctor is available to personally hand these to.

Not every doctor is willing to take something from a stranger.

Most doctors are in their medical offices during the day.

They have gatekeepers.

Good luck trying to get past them.

What happens if your process server shows up at your doctor's office and says "Hi. My name is John. I have lawsuit papers for the doctor. Can you ask him to come out so I can personally hand it to him?"

That won't get you very far.

"I'm sorry, but the doctor is seeing patients now. Why don't you just leave those papers with me?"

Well, that may not be good enough.

What if your process server waits till the evening until your doctor finishes his office hours.

As your doctor is walking through the parking lot going to his car, your process server yells out "Hey, Dr. Jones. Come here a moment. I need to talk to you!"

That doesn't work very well either.

The doctor might call the police.

Your process server might cause a physical altercation.

There are lots of 'what if's' that can occur.

Despite these obstacles, your process server must deliver these papers.

Otherwise, the doctor will never know that he's being sued.

Otherwise, the doctor will never be able to notify his insurance company that he's being sued.

Otherwise, the doctor may not get coverage for the claims you are making in this case for not timely notifying his insurance company of this lawsuit.

Delivering these lawsuit papers properly is critically important.

You also need to know that there are different ways a process server can deliver these papers.

If he cannot deliver them personally, he can leave it with someone who is legally authorized to accept these papers on his behalf.

That may be his secretary. 

Maybe it's his office manager.

If the office is closed and your process server cannot find the doctor personally, he may be able to leave a copy of these papers taped to his last known address. Then he has to mail a copy of these papers to his last known address, either at home or business.

But how does the court really know if the person you sued actually received these lawsuit papers?

Because the process server prepares a sworn statement saying he did.

He has to identify who he delivered the papers to.

Their height.

Their weight.

The color of their skin.

The color of their eyes and hair.

Even their name if he's able to get that.

Then, the process server takes that sworn statement and files that with the court clerk.

This is important.

If the doctor claims that he never received these papers, we now show the court the sworn statement that says that our process server did hand-deliver these documents to this person who is an employee in the doctor's office.

If your doctor claims he never received your lawsuit papers, we have to make sure to re-deliver them within a very specific period of time. We don't want that time to expire.

That time limit is known as the statute of limitations.

In this case, where your lawsuit is started and no one answers the allegations, that a problem.

It could mean that your process server did not serve the right person.

It could mean that your process server did not deliver the papers at all.

It could mean that your process server you did serve the right person but the doctor is simply ignoring it.

Any one of these options could occur.

None of these bode well for your case.

Your attorney must take immediate action.

Your attorney must investigate to find out why your doctor has not answered your lawsuit allegations.

If it turns out that your process server did deliver the documents directly to the doctor and swears to that fact, now the question is why didn't the doctor send those papers to his insurance company and to his lawyer?

That will prompt an immediate phone call to the doctor's office to inquire whether he received those papers.

We will ask whether he forwarded those papers to his medical malpractice insurance company.

We will ask whether he forwarded those legal papers to his attorney.

There have been instances where the doctor simply placed the papers on his desk and ignored it.

That could be a problem for the doctor.

If your doctor fails to answer the allegations within a very limited time, we can ask the court for a judgment against the doctor.

That's known as a 'default judgment'.

That's like getting an automatic win.

That's the same thing as if the Yankees are playing the Mets and the Mets fail to show up for the game.

The Yankees get an automatic win.

The same thing happens in a lawsuit.

If the other side fails to show up for the lawsuit proceedings, you, the injured victim, get an automatic win.

It means you get a tactical victory but don't get what you're looking for right away.

To learn whether you have to open your door when a process server knocks, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer