Rx & The Law

You've Been Served!

by Don R. McGuire, Jr., R.Ph., J.D.
General Counsel
Pharmacists Mutual Insurance Company

The day that you had hoped would never come has come.  The sheriff makes his way through the store, with papers in his hand, heading towards the prescription counter.  The sheriff says, “Chris, I’ve got something for you.”  The sheriff hands you the summons and complaint and walks out of the store.  A summons is the notice that a suit has been filed against you.  A complaint is the actual lawsuit.  Now what do you do?

The most important thing is to not ignore it.  This event, service of process, is the start of a procedure that is very time-sensitive.  Unfortunately, some defendants read through the complaint and conclude that it is either a bogus case or just a ploy to extract money from them.  The worst thing you can do is to toss it aside or throw it in a drawer and forget about it.  This is not something that is going to go away.  Ignoring it is only going to cause you more problems.  In fact, the clock started when the sheriff handed Chris the summons.

Court rules prescribe the time frame within which some sort of response to the summons must be made.  Depending on the jurisdiction, this is typically 20 or 30 days, although there are some other limitations out there.  If nothing is filed with the court before this time expires, the plaintiff may be able to file for a default judgment.  A default judgment essentially says, “You failed to respond, you lose.”  If the plaintiff gains a default judgment, they can then begin to try to collect the money from you.  The worst thing about a default judgment is that there is no deliberation on the facts or the issues of the case.  You might end up paying on that bogus case that you tossed into the desk drawer. 

The most typical response to a summons and complaint is to file an answer.  The answer addresses all of the allegations made by the plaintiff.  The responses are usually one of three possibilities; admission, denial, or not enough information.  With an admission, you admit that the allegation is true.  With a denial, you deny that the allegation is true.  The third response is used when you don’t know enough about the allegation to admit or deny it.  For litigation purposes, this is treated as a denial.  A response needs to be made for each and every allegation in the complaint.  The answer is also the place where affirmative defenses are raised.  These are legal defenses that counteract the allegations against you.  For example, raising truth as a defense to slander or libel.

However, there are circumstances when other filings are made instead of an answer. These are generally motions that raise a particular issue to the court.  The purpose of these motions is to contest certain issues prior to actually working on the substance of the case via the answer.  If you are successful on these issues, many times the case is thrown out and there is no need to work on the substance of the case.  The issues contested here can include the lack of jurisdiction by the court, the case is filed in the incorrect venue, the summons and complaint was improperly served, the case failed to name the proper parties, or the case is a duplicate of a previously filed case in another court.

It takes time to evaluate the allegations, decide whether to file an answer and/or a motion and to decide what allegations need to be admitted or denied.  Timeliness is your most valuable asset.  Don’t be an ostrich when you are served.  Sticking your head in the sand won’t make it go away and ignoring it could result in some serious negative ramifications for you.  Call your attorney and/or insurance company as soon as possible.  The more time they have to work on your response, the better it will be.