Medical mal practice affirmative def, answering summons

[selfprodigy]

1. Who is suing you?

- A surgeon w/ a lawyer

2. For how much?

681.00 plus court costs

3. Who is the original creditor?

None medical debt

4. How do you know you are being sued?

(I received this Summons)

5. How were you served? Were you served?

They literally dropped it in my garage and left.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

The doctor was supposed to remove a lump from my breast. He did not. He removed healthy tissue instead. The original doctor noticed that he did not remove the lump, and only removed healthy tissue. I wont even get into how mean he was. The original doctor said he would testify to the fact that there was only 1 lump and it remained after the suregory.

7. Where do you live?

Winnebago County Illinois

8. When is the last time you paid on this account?

( Never its 3 years old though)

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

( I am thinking they are just waiting for my response)

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

(No i have not)

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

(no i did not)

I posted an earlier thread about this... This is in relation to my mother in law. She wants to fight the law suit. She talked to her original doctor and he is willing to testify to the fact that the lump was not removed and is still there.

Now I'm a little confused on a few things here.

First it says

You are hereby summoned and required either

To appear in this court at the civil division at 10 oclock am on october 7th 2010

OR

It says to file your written appearance by but the dates are blank?

Does this mean i have to appear and i cant file a written appearance since there is no date listed.

Then a paragraph down it says. The case will not be heard on the day for appearance, specified above. If you have filed your written appearance or answer and paid your filing fee you need not appear in person that day.

Okay its like 115 dollars to file a small claims but i cant find a fee for answering a small claims. Does this sound right though? If so i can't mail it I will have to go in pay it and file it in person?

Lets say i do go there file an answer and mail it off to their attorney. Then what is the next step. I wait for them to respond? I dont have to go to court on that date listed. It's very confusing.

Below is my written response please let me know if i did it correctly i found a form on their website to do it on. Sadly its only one page long so i had to squeeze it.

DENIED: Responding party objects to this request on the grounds that it is vague,ambiguous, and unintelligible in that the Responding Party has to speculate as to the meaning of "services rendered"

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

AS AND FOR AFFIRMATIVE DEFENSES

AS and for a First Defense

Medical Malpractice - Plaintiff did not perform the correct operation, causing the Defendant unnecessary pain, emotional trauma and suffering. Defendant's family doctor examined and confirmed that the Plaintiff did not perform the correct operation ordered.

As and for a Second Defense Lack of consideration

As and for a Third Defense Breach of implied warranty

As and for a Fourth Defense Unjust enrichment

As and for a Fifth defense Defendant invokes the Doctrine of Unclean Hands

WHEREFORE, the defendant asks the Court for judgement:

a. dismissing the compliant herein with prejudice.

Thanks for your previous help you guys. A little more guidance is really appreciated.

I cant seem to find if medical mal practice is an affirmative defense in IL any help?

Edited September 27, 2010 by selfprodigy

[Guest usctrojanalum]

I would go down to the court house and file an answer in person.

Medical Malpractice is an affirmative defense, but you will need an affidavit from a doctor or he might even have to testify on your behalf. Since you already have one that is willing to, that is great.

As I mentioned in the previous thread, you can countersue for Med Mal but the doctor does have the affirmative defense of Statute of Limitations since this happened 3 years ago.

[selfprodigy]

Okay he's willing to testify. But I don't need him until after the discovery process right? I don't want to drag him to court until i need him.

[WhoCares1000]

I would almost suggest getting the family doctor to do an affidavit to file with your answer. He may be needed to testify during discovery for what is called a deposition hearing.

Note that you may also be allowed to be awarded legal costs for your defense.

[selfprodigy]

I can't really seem to find a form for that on their county website. Is it just a paper swearing to the fact that he witnessed this signed by him does it have to be notarized?

[Guest usctrojanalum]

This type of affidavit you would really have to come up with by scratch.

it could look something like this.

Court you are being sued in

_______________________

Doctor

against

Defendant

______________________

State of Illinois

County of Anywhere

My family doctor being duly sworn and deposes states that:

(fill in all the necessary information here). you should probably seek help for creating this affidavit from the doctor and/or someone with legal experience.

[Guest usctrojanalum]

and yes it has to be notarized

[jq26]

Your med mal counterclaim may still be viable. The 2 year SoL kicks in from the date of discovery of med mal (the date you knew of it or should have known of it if you were reasonably diligent). However you have a maximum of four years from the date the med mal occurred, regardless of discovery date.

Talk to a PI attorney- quickly. I am shocked that a physician that made a legitimate preventable error would attempt to collect on this. Have you contacted him personally or is this coming from centralized billing?

[selfprodigy]

Yes he was contacted and refused to speak to us. Everyone else got paid except him. It's really not a matter of money on this one it's the principle. He was supposed to do something and he didn't. He should not get paid period.

So I'll get the affadavit signed and attached to my documents. Does my answer seem okay or do i have to explain each item?

[Guest usctrojanalum]

In OP's other thread she stated it was discovered immediately and the Plaintiff in this case offered to do the operation again but the OP's mother refused.

[jq26]

I see now- I was late to the table here. Regarding the petty $600 lawsuit, the OP has a valid defense, though the med mal offense has expired.

[selfprodigy]

You guys have been great. One final question. I know your not a lawyer but what do you think of my answer. Is it written correctly in your opinion.

[selfprodigy]

My god it's 135.00 to file an answer to the compliant. Just to defend myself. This is crazy is there any way i can recoup that from them. I just called the court house.

[Guest usctrojanalum]

Yea, it's really stupid that some jurisdictions make you pay a fee to file an answer to defend yourself. All the upfront cost should be supplied by the plaintiff and if they are successfull in getting a judgment all costs should be tacked back onto the judgment amount. Seems to work here in NY.

[selfprodigy]

I talked to my uncle his is a family and divorce lawyer. He was on the train on his way to the bears vs packers game tonight so he couldn't go into detail. He said in order to medical malpractice as an affirmative defense, or to counter sue that will need to get a certificate of merit from the doctor. But, he didn't really tell me where to get that. Does someone have a form like that?

[WhoCares1000]

As for the cost of defending yourself, you are allowed to request that is you win. How you request it is in the answer where you requested the case be found in your favor, as the statement "and the defendant is awarded all legal cost in defending this case".

[selfprodigy]

Okay guys doctor backed out and won't answer my phone calls.

I just have a few questions.

1.) Do i have to put the dr name in the answer if i plan on subpoena him to testify.

2.) I have pictures of the hack job this doctor did so i attach them to my answer?

3.) What other affirmative defenses should i list?

4.) If i wanted to countersue how should i word it in the answer?

[Guest usctrojanalum]

1.) Do i have to put the dr name in the answer if i plan on subpoena him to testify.

No.

2.) I have pictures of the hack job this doctor did so i attach them to my answer?

Absolutely not, these pictures become apart of a public record do you really want these out there? There are ways to introduce them later.

3.) What other affirmative defenses should i list?

What other ones do you have?

4.) If i wanted to countersue how should i word it in the answer?

Title your papers "Answer with counterclaims"

then respond to allegations

list affirmative defenses

list counterclaims