Perhaps the most difficult question for a medical malpractice attorney to answer is "how long will it take my case to settle?" The question is an important one, which is why patients ask it so frequently. But attorneys find it nearly impossible to answer, and for good reason. The best answer is probably that the patient should expect the case to last several years. Different studies have produced different results, but a 2006 New England Journal of Medicine study found that the average time between a health care-related injury and the closing of a medical malpractice case was five years.
In a medical malpractice case, there is no designated point in the process where settlement normally occurs. Settlement negotiations can take place at any point, and usually will occur on multiple occasions as the case progresses. A settlement agreement can happen very early on (before a medical malpractice lawsuit is even filed) or it can take place on the proverbial "court house steps" while the case is weeks into the trial phase.
As a general rule, the more complicated a medical malpractice case is, the longer it will take to settle. Factors that make cases more complicated include:
For example, imagine Susan is hit by a car when crossing the street. She is taken by ambulance to a hospital, where she has surgery on her back. The next day, she has another surgery on her leg, this time by a different doctor. At some point in the process, it is discovered that she acquired an infection.
Who is legally responsible for causing the infection? Susan will likely sue both doctors, the hospital, the ambulance service and the driver of the car. That means six parties (including Susan) will be involved in the case, and issues will range from liability for the initial car accident to potential medical negligence on the part of the different health care providers. If one party makes a motion, 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. Since doctors and nurses are very busy people, the depositions can be difficult to schedule and each may be a month or two apart. And let's not forget about requests for production of documents and other time-consuming procedural steps.
In this case, somebody is responsible for Susan’s infection. But it is unclear who that is. Settlement is unlikely until the parties can gain a decent understanding of which party should be blamed for the infection. Thus, Susan will probably have a long wait before a settlement is reached among all six of the parties involved.
Generally, a patient’s medical malpractice attorney will take a case on a contingency fee basis. This means that the attorney is not paid until a settlement is reached or a verdict is returned in favor of the plaintiff patient. At that point, a portion of the settlement or verdict (usually about 1/3) goes to the attorney. (Note: In some states, an attorney's contingency fee percentage is set by law in medical malpractice cases.)
Are these contingency fees fair? It is technically possible that an attorney will take a case on a Monday and get an insurance company to agree to settle the case for $1.5 million on Tuesday. In such a case, if the attorney was working on a contingency fee basis for 1/3 of the award, that attorney would have earned $500,000 in one day.
Now, did the attorney work so hard in that one day so as to deserve that amount? Certainly not, but the attorney might work on the next medical malpractice case for five years and earn nothing.
So, when an attorney and a patient enter into a contingency fee agreement, both sides gamble based on two factors: the amount of time it will take to resolve the case, and the outcome of the case.