If you have a medical malpractice case (or think that you might have one), you might be wondering what goes on in a typical case. This article will walk you through the standard events and timeline of a medical malpractice case, so you have a better idea of what to expect.
Choose the Right Lawyer
The first thing that happens is that you have to choose a lawyer to represent you. A medical malpractice case isn't the kind of legal action you want to embark upon on your own.
You should certainly talk to a number of lawyers and might want to meet several of them. After you choose a lawyer and sign a fee agreement, the case will begin.
Learn more tips for finding the right medical malpractice lawyer, click here.
Lawyer Does Investigation and Reviews Medical Records
The first thing that the lawyer will do is thoroughly interview you about your medical condition and medical treatment. The lawyer wants to make sure that he/she knows everything that you know about your condition and treatment.
Then, the lawyer will get all of your medical records and bills relating to the malpractice and will probably also get your medical records for any treatment that you have ever had relating to the condition at issue in the case. This can take months.
After all of the medical records come in, the lawyer will review them to see if, in his/her opinion, there is a valid medical malpractice case. Many times the lawyer can determine that there is no case and will deliver the bad news to the client very early on in the representation.
Lawyer Hires Medical Expert to Offer Opinion on Negligence
If the lawyer thinks that you may have a malpractice case, the lawyer will search for and hire the appropriate expert medical witness.
In order for a medical malpractice case to get to trial, you must have a medical expert, usually a doctor who practices in the same specialty as the defendant, to have reviewed the medical records and issued an opinion that the defendant was negligent and that the defendant’s negligence was a cause of your injuries and damages.
Lawyer Considers Making Demand and Negotiating
Many non-medical malpractice cases are settled before a lawsuit is ever filed. That is not always the case with medical malpractice cases. Especially in the bigger medical malpractice cases, the doctors’ insurance companies are not interested in discussing settlement until after the lawsuit has been filed and they have a chance to do their pre-trial investigation.
The Lawsuit is Filed
The lawyer will then file the lawsuit. A lawsuit is generally called a Complaint or a Writ.
The filing of the lawsuit starts the clock running on when the case might get to trial. Every state’s pre-trial procedures are different, but generally it will take between a year and a half and three years after the lawsuit is filed for a medical malpractice case to get to trial.
The Offer of Proof/Certificate of Merit is Filed
In many states, the plaintiff’s lawyer must submit what is called an Offer of Proof or an Affidavit of Merit after filing the lawsuit and before any pretrial investigation occurs.
The purpose of the Offer of Proof or Certificate of Merit is ensure that the case is at least arguably a legitimate medical malpractice case. Depending on the individual state’s laws, the lawyer must submit either a written opinion of negligence from a doctor who has reviewed the plaintiff’s medical records or an affidavit from the lawyer affirming that the lawyer has discussed the case with a qualified physician who believes that the plaintiff has a legitimate medical malpractice case.
The Discovery Process
Once the judge has approved the Offer of Proof or Certificate of Merit, the litigation begins, and the parties conduct discovery.
The discovery process is the procedure in which each party investigates what the adversary’s legal claims and defenses are. They send interrogatories (a fancy word for questions) and document requests to each other, and take depositions of all of the relevant witnesses in the case, generally beginning with the plaintiff and defendant.
This discovery process can last a year or more, depending on the court’s deadlines, and often requires the parties to go back to court to get the judge’s help. In many cases, one or both of the parties is dissatisfied with the other party’s responses to the interrogatories and/or document requests and so files a motion to compel further responses. The judge will hear each side’s arguments and then make a decision. This can happen many times during the course of a lawsuit.
Mediation and Negotiation
As the discovery period ends, the lawyers will generally start talking about settlement. Sometimes the lawyers can settle a case just by talking amongst themselves, but, in other cases, they will go to mediation. Mediation is a process in which both clients and both lawyers go in front of a mediator to try to settle the case.
Often the mediation works, but, if it does not work, the case is scheduled for trial.
A medical malpractice trial can last a week or more. The length is increased because, in many states, trials are on for only half a day instead of a full day. That doubles the length of a trial, but also lets the lawyers and judges get other things done in the afternoon.
One important thing to know about trials is that just because a lawsuit is scheduled for trial does not mean that the trial will actually occur on that date. Trials often get rescheduled because of the judge’s schedules. If your medical malpractice trial gets cancelled, you should not automatically assume that something inappropriate is happening. Unfortunately, it happens all the time.