Christopher J. Ryan, Esq.
Dickinson Wright PLLC, Ann Arbor, MI

You’re in your office and an office staff member approaches you with a strange look on her face. You are told that there is a man at the front desk with some documents for you. She explains that the individual holding the documents will not leave them with her; he will only give them to you. You reluctantly approach the individual. He hands you an envelope and you soon learn you have been sued. It turns out the delivery man was, in fact, a process server. (And sorry to disappoint, but unlike what may be portrayed in the movies, in this author’s experience, he won’t be wearing a disguise.)

If you have never been involved in litigation, when you find out you are being sued your heart probably starts pounding. Alarm bells in the back of your head ring out of control. What should you do, and more importantly, what should you not do?

This article will outline some of the actions you should consider taking, and just as importantly will outline some actions that many people are tempted to take but almost certainly should not.

Don’t Play Ostrich. When faced with danger, some ostriches bury their heads in the sand so they do not have to face the danger. Believe it or not, many humans do something similar when served with a lawsuit. This author has seen very successful and very intelligent businessmen, physicians and even law firms who, after being served with legal process, stick the documents in a drawer and pretend they do not exist. But a lawsuit will not go away simply by disregarding it.

Ignoring a lawsuit only makes a tough situation worse. In most jurisdictions, an individual served with a lawsuit must file a formal response within a certain amount of time (generally a few weeks or slightly more). The “clock starts ticking” on your deadline to file a response when you are served with the papers. If you fail to file a response because you stuck the lawsuit in your desk drawer, it may mean that you forfeit the right to put up a defense to the suit or to dispute the allegations in the lawsuit. The court may simply enter a judgment against you for the amount demanded in the suit. Even if you ignore the suit for a few weeks but act on it before the deadline expires, you have just cost yourself precious time to start gathering documents and formulating your response.

Do Think About Insurance. There are many reasons you could be sued. Physicians are sued for malpractice with increasing regularity (for many specialties, the question is not if they will be sued, but when) and lawsuits between businesses is often seen as a cost of doing business. Individuals may be sued for any number of reasons: perhaps six months ago they got into a fender bender, they forgot to pay a bill, or because a tree on their land is overhanging onto their neighbor’s property. Whatever the reason, it is very possible that you have insurance to not only cover a judgment, but to pay for your legal fees along the way. Some insurance policies are obvious (think auto, boat, home and malpractice). But what those policies cover may surprise you. For example, your homeowner’s policy may be broader than you think. Your malpractice policy may provide you with an attorney if you are subpoenaed to give testimony, even if there is no claim that you did anything wrong. If you are not sure whether you have any insurance policies that apply, call your agent or your insurance company, or ask an attorney.

Don’t Alter Records.  Don’t Alter Records. It’s not a typo. It appears twice because it is that important.

Lawsuits are usually filed months or years after the events took place that are at issue in the lawsuit. For example, in Michigan, a patient generally has two years or more to file a medical malpractice lawsuit. An individual may have six years to file a lawsuit alleging that a contract was breached. That means that when you find out you are being sued, you may not even remember being involved in the events at issue in the lawsuit. It is natural if your first inclination is to look up all the documentation and records you can to remind yourself about your involvement or to determine whether you were even involved at all. But resist the temptation, and under no circumstances should you alter the records.

There are many reasons not to alter records. Depending on the jurisdiction and type of record, odds are altering records is illegal and could subject you to civil or criminal penalties. In addition, altering records makes you look dishonest even if your alteration is accurate and well intentioned. For example, you may be tempted to add entries that you may have forgotten to put in the record in the first place. Or perhaps you see something in your records that you no longer believe is accurate. Do not make any changes, and do not delete or destroy the records. Instead, talk to your attorney about your specific situation. Explain your concerns and work with her or him in order to convey full and complete information.

Do Preserve Records. Increasingly, jurisdictions are imposing an affirmative duty upon participants in a lawsuit to preserve data and records, including electronically stored information. In the healthcare context, most people associate electronically stored information with the electronic medical record. While electronically stored information certainly includes the medical record, it may be broader than that. Emails, text messages, pictures or other types of electronically stored information may be relevant to the case.

Most organizations have retention policies in place, but given that a lawsuit may be filed years after the conduct at issue, it is important to make sure that information is not purged (even inadvertently) after notice of the lawsuit is received. If necessary, discuss your retention policies with your lawyer and ensure that information relating to the lawsuit is exempted from routine periodic destruction/shredding.

Don’t Discuss the Lawsuit. It is quite natural, especially among healthcare providers, to discuss adverse outcomes. Many states encourage open and frank discussions about adverse outcomes in order to reduce morbidity and mortality and improve patient care. For that reason, many jurisdictions protect information gathered by a peer review entity from disclosure in a subsequent litigation. However, after a lawsuit is filed, if meetings are held to discuss the lawsuit, the information discussed at the meeting may very well be discoverable by the opposing party. Even if the purpose of the meeting is above board, the opposition may try to argue that you held the meeting to get your story straight or cover something up. Your attorney will be able to help you navigate when and with whom it is okay to discuss the lawsuit, and to preserve all available privileges.

Do Contact a Lawyer. Whether you contact a lawyer through your insurance company or on your own, it is recommended that you consult an attorney as early as possible after being served with legal process. As indicated, there are usually deadlines requiring you to respond to most legal process, and the longer you wait to contact an attorney, the less amount of time the attorney has to prepare and file an appropriate response.

If your insurance company hires a lawyer to represent you, consider whether you need personal counsel. Most insurance companies hire good attorneys, and the attorneys are hired to look out for your best interests. However, if you feel you need to retain your own personal attorney, you should do so.

Don’t Let the Lawsuit Define You. Lawsuits can be extremely stressful. Although you should respect the legal process and give the lawsuit the attention it deserves, avoid letting it define you. For some, this is easier said than done. Discuss your stress level with your attorney, and seek professional medical/mental health assistance if you need it.

Christopher J. Ryan is an attorney and Of Counsel at Dickinson Wright PLLC. He is an experienced litigator who has spent most of his career representing individuals and businesses involved in the healthcare industry. Chris can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. .