If you think you have a medical malpractice case, you're probably wondering what to expect once the process gets started. Let's look at a standard timeline.
With procedural hoops for the injured patient to jump through and complex legal and medical issues to navigate, these aren't the kinds of claims you want to try handling on your own. Having an experienced lawyer on your side is crucial to your chances of success. Learn more about finding the right medical malpractice lawyer for you and your case.
The first thing your lawyer will do is talk to you about the medical condition and medical treatment that led to the health care provider's alleged medical negligence. Next, your lawyer will request all medical records and bills relating to the alleged malpractice, and may also request records related to any condition or care in your medical history that may impact the current case. This can take months.
After all relevant records come in, the lawyer will review them to see if there is a valid medical malpractice case. The lawyer may determine that there is no case, and will deliver the bad news to the client very early on. Remember that an undesirable health outcome does not mean that a provider has committed malpractice. Learn more about when it's medical malpractice, and when it isn't.
If the lawyer thinks that you may have a malpractice case, the lawyer will search for and hire the appropriate expert medical witness, usually a doctor who practices in the same specialty as the defendant. In order for your case to succeed (and in some jurisdictions, in order for a medical malpractice lawsuit to be filed in the first place; more on this below) a qualified expert must review the medical records and issue an opinion that the health care provider's conduct fell short of the appropriate medical standard of care.
Many personal injury cases are settled before a lawsuit is ever filed. In medical malpractice cases, pre-lawsuit settlements are not typical, but it does happen. More often, and especially in bigger medical malpractice cases, the doctors’ insurance companies are not interested in discussing settlement until after the lawsuit has been filed and they have had a chance to do their pre-trial investigation.
The lawyer will then file the medical malpractice lawsuit. The document that starts the lawsuit (and contains the injured patient's allegations) is usually called a Complaint.
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.
In many states, the plaintiff’s lawyer must submit what is called an Offer of Proof or an Affidavit of Merit when or soon after filing the lawsuit, and before any pretrial investigation occurs.
The purpose of the Offer of Proof or Certificate of Merit is to ensure that the medical malpractice case is at least arguably legitimate. Depending on the 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. In some states, a pre-lawsuit panel will consider the injured patient's allegations before the lawsuit can be filed.
Once the pre-lawsuit procedures have been satisifed, litigation begins, and the parties conduct "discovery", a 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 relevant parties and 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.
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, a process in which both clients and both lawyers go in front of a mediator to try to settle the case.
Often mediation works, but if the two sides are too far apart, the case is scheduled for trial. One important thing to know about trials is that just because a lawsuit is scheduled for trial does not mean the trial will actually occur on that date. Trials often get rescheduled because of the court's schedule and delays in the progress of the case. Learn more about the challenges of winning a medical malpractice case.