By Dr. JD, a plaintiff’s attorney, practicing in the Northeast


We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.


A defendant doctor has options to change the landscape of the lawsuit against him – impleader and summary judgment.

1. Impleader


Like any standard tort action, a medical negligence lawsuit begins with the plaintiff serving a summons and complaint on the defendants named in the caption.


The named defendants reflect the understanding of the plaintiff at the time the lawsuit commences as to who is liable for the injuries.


That listing can generally be amended for a limited period if new information comes to light, but after that point, the window of opportunity for naming new defendants c loses.  The listing of the defendants in the caption tends to remain unchanged.


However, there are others within the scope of the lawsuit who may have different perceptions than the plaintiff as to liability – namely, the defendants.


Although plaintiff’s attorneys are generally adept at parsing out likely causation  when they name the defendants, the inherently complicated nature of modern medical care and the emotional attachment of patients to their doctors can result in someone being left out of the lawsuit.


Impleader allows the defendant to act to change that.


It is a pre-trial procedural device in which a defendant brings in a third party to the lawsuit on the basis that if they are liable to the plaintiff then that third party is liable to them.


Let’s look at an example, based on an actual case, where that can occur and how impleader factors into it:


(i) Dr. A, a radiologist, is being sued by a patient for failure to diagnose lung cancer in a timely manner. The case is based on a claim of a missed finding on a chest X-ray and a consequent failure to suggest a CT.


When the radiologist’s defense team receives the patient’s medical records, they find the patient was complaining of an increasing cough for almost a year and that Dr. B, the patient’s family physician, did not send him for any testing during that interval. The lawyers surmise the patient selectively chose to preclude Dr. B as a defendant in the lawsuit because he likes her. However, they see a clear line to a defense – even if Dr. A was negligent, that negligence was not the proximate cause of the harm that the patient suffered because the cancer had already progressed significantly while the family doctor ignored important symptoms. There’s also another option – joint liability that will reduce Dr. A’s share of any eventual verdict or settlement.


The radiologist impleads Dr. B, the family doctor. Misery loves company.


A court has a great deal of discretion in deciding whether a defendant may implead a third party.

The judge will be alert for gamesmanship designed (a) to cause undue delay; or (b) dump new parties into the case to simply confuse the jury.  However, in the absence of such conduct, courts are generally amenable to these actions as long as a valid basis for them can be demonstrated because they allow two cases that are logically connected to be disposed of together rather than evolving into multiple lawsuits.


2. Summary Judgment


Let’s look at a common scenario:


It has been two years since you learned you were sued.   You produced all requested documents.  You have been deposed. A respected expert is ready to testify in your defense.  The plaintiff still does not have an expert and has been granted multiple postponements by the judge.


You have called your defense lawyer several times.  Over and over, you are told to “Just wait”.


But do you have to just wait?




The law provides a remedy: a motion for summary judgment.


It is called a “dispositive motion” because it asks the court to deal definitively with the specified issue without the need for any further proceedings.


That issue may be the entire claim on which the case is founded, in which case the action ends if summary judgment is granted to the defendant. Or, summary judgment may be for one element of the case, which narrows the issues for trial.


This type of motion is different from a “motion to dismiss.”  A motion to dismiss is brought at the outset of the case and asks the court to get rid of the action because of essential legal defects, such as a failure to serve the defendant properly or a failure to state a claim under applicable statutes.


By contrast, a summary judgment motion is a judgment on the merits. The moving party is putting their adversary to their proof.


Summary judgment is only granted when there is no dispute as to the material facts so that the moving party is entitled to judgment as a matter of law.


What that means, translated from legalese, is that:


(1) One side simply does not have the ability to support its contentions. There is, therefore, no actual legally cognizable dispute. While the parties may still bitterly disagree, the plaintiff does not have sufficient evidence to satisfy its burden of proof at trial.


(2) The moving party is entitled to summary judgment because that is what the law mandates.  This is a very important point.  The judge is not deciding the case.  The judge is saying “I have no job here because there is no way for this claim to proceed under applicable law.”


A motion of this type may actually result in a “mini-trial.”  Any evidence that would be admissible at trial, such as the medical record and deposition transcripts, can be presented and the judge will often hear oral arguments.


The judge then determines whether there is any basis on which to go forward. Again, the judge is not deciding who is right – the judge is deciding whether the party that wants to go forward can substantiate its case enough to warrant a trial taking place so that a jury can decide who is right.


The moving party carries the heavy burden of proof because it is the side asking for the relief.  This means that even though the plaintiff would bear the burden of proof at trial, if the defense is moving for summary judgment, the defense has the burden on the motion.


After that, the burden shifts to the other party to prove that it really does have a basis to go forward to trial; that there are still “triable issues of fact” to be resolved on which it has sufficient evidence.


A motion for summary judgment is not, however, a slam dunk even if the plaintiff has a weak case.  The idea that someone should get their day in court is hallowed and judges try to view the matter in the light most favorable to the party that wants to keep the case going.


Motion for summary judgment is useful when you find yourself mired in a case in which the plaintiff simply does not seem to be able meet even their most minimal burdens at trial.


This leads us to a critical point that you must bear in mind when dealing with defense attorney: the possibility of a financial conflict of interest as to how your case will be handled.


Your defense attorney is paid by billable hours, win or lose, and so has an incentive to keep your case going to the maximum allotment that your insurer will invest in it.


This is not said with the intention to make you mistrust your defense team.  Most will act fully appropriately on your behalf. It is said to remind you that there interests you need to take into account.


In that regard, it is important to remember that a motion for summary judgment is a powerful tool to affirmatively combat a weak case and therefore should be on the table of your defense strategy.


So, if your case has devolved into a non-case but it is still not ending, don’t be bashful.  At the risk of sounding like a drug commercial, “Ask your lawyer and your malpractice carrier if a motion for summary judgment is right for you.”


In summary: Impleader allows a defendant to “correct the caption” and bring in a defendant who should have been named. A motion for summary judgment is an effective tool to end a case that the plaintiff does not appear to be able to progress on.


Medical Justice’s thoughts: Plaintiff’s attorneys are bigger fans of impleader agreements because it adds another defendant to the list of people who can make payment. Defense attorneys are not so enthusiastic – because it increases the odds of finger pointing where both parties will be making a payment if a jury can’t sort through the added complexity. Now, summary judgment is another story. It’s a useful tool to end a case the plaintiff will not advance. That said, if the plaintiff has secured a qualified expert, it’s hard to prevail in motion for summary judgment. Finally, it’s sometimes easier for the defense attorney to pick up the phone and ask the plaintiff’s attorney to dismiss a stale case without having to go through summary judgment. A successful summary judgment opens the door for the defendant to countersue for malicious prosecution – an option that is not generally available if the plaintiff just dismisses the case.