For plaintiffs in a medical malpractice case, besides "How much is my medical malpractice case worth?", the second most common question is, "How long will my case take?" This is an extremely difficult question to answer. The answer depends on a large number of variables, many of which won't be fully understood until the end of the case.
The best answer is probably that the patient should expect the case to last several years. Different studies have produced different results, but one recent nationwide study in the New England Journal of Medicine found that the average time between an injury and the closing of a medical malpractice case was five years (see more medical malpractice statistics).
In the sections that follow, we'll discuss some of the factors that dictate the length of medical malpractice cases.
Factors That Prevent Quick Resolution of the Case
One case might go to trial one year after an injury occurred. Another case might languish in the pretrial phase for five or more years. There is no established timetable upon which a case must proceed. As a general rule, the more complicated and potentially valuable a case is, the more slowly it will progress. Factors that make cases more complicated include:
- complex or novel medical issues
- complex or novel legal issues
- large numbers of witnesses
- multiple parties that may be responsible
- serious injury to the plaintiff (meaning that a lot of money is at stake).
For example, imagine Susan is hit by a car when crossing the street. She is taken by ambulance to a hospital where she is rushed into the OR to have surgery on her back. The next day, a different doctor performs surgery on her leg. At some point in the process, it is discovered that Susan has acquired a serious infection.
Who, if anyone, is to blame for the development of the infection? Since, at the outset of the case, Susan and her attorney are unable to determine who is at fault, she might sue both doctors, the hospital, the ambulance service, and the driver of the car. That means that six parties (including Susan) will be involved in the case. Cross claims and counterclaims will likely be filed. If one party files a procedural or evidentiary motion in court, all five of the other parties will probably respond to it. All six attorneys may attend each deposition and ask different questions. All of the doctors and nurses that came in contact with Susan may be deposed on different days. It becomes much easier to understand the delays that can occur simply by considering the scheduling difficulties. Imagine trying to get six attorneys and a doctor in the same room at the same time for a three hour period.
Another factor that can contribute to the speed of a case is the judge who is overseeing it. While a case is in the pretrial stage, the attorneys must appear periodically before the judge in order to provide an update. Some judges are very demanding about moving cases forward quickly, requiring that the parties hold mandatory settlement conferences, or try alternative dispute resolution. Other judges are much less demanding, and let the parties dictate the speed of the case.
Factors That Influence Procedural Length of the Case
A medical malpractice case can be resolved without filing a single document in court. In fact, in some rare cases, the entire case can be resolved with one phone call that looks like this:
- Lawyer One: “I represent Jim. He is going to sue your client for an incident on March 1.”
- Lawyer Two: “I have discussed the incident with my client. We’d like to avoid a lawsuit.”
- Lawyer One: “We would be willing to take $50,000.”
- Lawyer Two: “Deal.”
On the other hand, a case can involve a pretrial process that lasts several years, followed by a jury trial and multiple appeals.
Factors that can influence the procedural length of the case can't be easily isolated from those discussed in the section above (complex legal or medical issues, large number of witnesses, etc.)
For example, a complex or novel legal issue can add to the procedural time of the case if the losing party decides to file an appeal over the issue -- the strategy being that if the issue is one that is fairly new or unique, there's no clearly established legal rule (precedent), and an appeals court might be more likely to take up the question.
Other factors that might draw out a case are more rare (and in some cases, unethical). Defense attorneys are commonly paid by the hour. So, a defense attorney may have an incentive to avoid settling a case in order to drive up hours worked, thereby driving up attorney’s fees. Moreover, a medical malpractice insurance company may wish to develop a reputation for being difficult to negotiate with, believing that such a reputation would prevent attorneys from filing frivolous lawsuits (or even viable ones). That motivation might lead the insurance company to take steps to avoid settlement.