Glossary of veterinary malpractice legal terms

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May 07, 2008
By dvm360.com staff
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Click on the words below to read their definition.

Brief
Cause of action
Court
Damages
Default judgment
Demurrer
Deposition
Discovery
Injunction
Lawsuit
Malpractice
Motion to strike
Negligence
Punitive damages
Service of process
Settle
Settlement
Small claims court
Summons
Superior court
Statute
Subpoena
Tort

Brief: n. a written legal argument stating the legal authorities and arguments in support of a petition or motion.

Cause of action: n. the basis of a lawsuit founded on legal grounds as required by common law or statutes. In many lawsuits there are several causes of action stated separately, such as negligence.

Court: n. 1) the judge, as in, “The court rules in favor of the plaintiff.” 2) any official tribunal (court) presided over by a judge or judges that hears and determines legal issues and claims. In the United States there are essentially two systems: federal courts and state courts.

Damages: n. the amount of money or nonmonetary awards, such as injunctions, that a plaintiff may be awarded in a lawsuit.

Default judgment: n. if a defendant fails to respond to a complaint in the time set by law (often 20 or 30 days), then the plaintiff can request that the clerk of the court enter the default into the court record. This gives the plaintiff the right to get a default judgment.

Demurrer: n. a written response to a complaint filed in a lawsuit that, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.

Deposition: n. the pretrial taking and recording of testimony under oath before a court reporter in a place other than the courtroom. The person testifying could be the opposing party (defendant or plaintiff), a witness to an event, or an expert that the opposition intends to call at trial. The court reporter will take down the testimony and prepare a transcript, which assists in trial preparation and can be used in trial to contradict or refresh the memory of the witness or to be read into the record if the witness is not available.

Discovery: n. the efforts to obtain information before trial by demanding documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights. Often much of the fight between the two sides in a suit takes place during the discovery period.

Injunction: n. a judicial remedy awarded for the purpose of requiring a party to refrain from doing or continuing to do a particular activity.

Lawsuit: n. a common term for a legal action by one person or entity against another person or entity, to be decided in a court of law, sometimes just called a “suit.” The legal claims within a lawsuit are called “causes of action.”

Malpractice: n. a single act or continuing conduct that does not meet the standard of professional competence and results in provable damages to a client or patient.

Motion to strike: n. a request for a judge’s order to eliminate all or a portion of the opposing side’s legal pleading based on any one of several grounds. A motion to strike is often used in an attempt to get an entire cause of action removed from the court record.

Negligence: n. taking action that a reasonable person would not or failing to exercise the care toward others that a reasonable person would give in the same circumstances.

Punitive damages: n. damages awarded in a lawsuit as a punishment for malicious, evil, or fraudulent acts.

Service of process (getting served): n. the delivery (usually in person) of copies of legal documents to the defendant or whomever the documents are directed. So-called “substituted service” can be accomplished by leaving the documents with an adult resident of the home, a management-level employee of a business office, or a designated “agent for acceptance of service” (often with name and address filed with the state’s secretary of state).

Settle: v. to resolve a lawsuit without a final court judgment by negotiation between the parties, usually with the assistance of attorneys and/or insurance adjusters. 

Settlement: n. the resolution of a lawsuit without getting a final court judgment. Most settlements are achieved by negotiation in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company’s insured defendant) and the parties agree to settlement terms. Many states require a settlement conference a few weeks before trial. A settlement is sometimes reached just before trial or even after trial has begun. These types of settlements are often read into the record and approved by the court so they can be enforced if the parties fail to comply with the settlement terms. Most lawsuits result in settlement.

Small claims court: n. a division of most municipal, city, or other lowest local courts that hear cases involving relatively small amounts of money. In small claims court, the filing fee is low, the procedure is fairly informal, attorneys can’t represent their clients at the hearing, there is no jury, and each side has a short time to present his or her case.

Summons: n. a document issued by the court at the time a lawsuit is filed stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff’s attorney, and instructions about the time limit for the defendant to file a response (such as 30 days after service). A summons usually comes with a form—called a “return of service”—that includes information about when the summons and complaint were served. The process server is expected to complete and sign the form.

Superior court: n. for our purposes, the state or county court.

Statute: n. a federal or state law enacted by Congress or a state legislature, respectively.

Subpoena: n. a court order for a witness to appear at a particular time and place to testify and/or produce documents.

Tort: n. from French for “wrong,” a civil wrong or wrongful act, whether intentional or accidental, that causes injury. Torts include all negligence cases and intentional wrongs resulting in harm.