Step-by-Step: Medical Malpractice Cases
1) Initial Evaluation Of Medical Malpractice Case By Attorney
2) Medical Expert’s Review Of A Medical Malpractice Case
3) Starting The Process Of Pursuing A Malpractice Claim
If the claim is one of relatively clear negligence, and the client’s condition is stable, it may be possible to settle the claim without the high costs and delay of litigation.Nonetheless, some doctors will refuse to permit their insurance carrier to settle even a very strong case, and many carriers have been emboldened by cases they have won, such that they fight even clearly valid claims. Unlike other types of liability insurance, here the insured parties have the final say in any settlement. In some cases there is an impending statute of limitations deadline and a lawsuit must be filed before that deadline. A legal action based on professional negligence must be initiated within three years from the act or omission which is alleged to have caused the injury or condition, or one year from the time the claimant discovered or reasonably should have discovered that the injury or condition was caused by the professional’s act or omission, whichever is earlier.
If legal action is not initiated within that time frame, the claim may be forever barred, unless the limitation is extended by some other legal provision, such as those pertaining to minors, those pertaining to foreign bodies left inside a surgical patient, or those involving delayed manifestation of harm. There is a six-month statute of limitations for any claim against a governmental agency, such as a county hospital, and a two-year statute for claims against the Federal government, such as claims against the Veterans Administration. If the insurance company wishes to attempt a pre-lawsuit settlement, there may be delays while the insurance company has the claim evaluated by its own experts. Once that evaluation is completed, there will be settlement negotiations and, sometimes, a mediation session. Mediation is a non-binding process whereby both parties and their attorneys meet with a mutually agreed upon impartial third person who assists in trying to reach a settlement.
4) The Medical Malpractice Lawsuit Or Arbitration Proceeding
That means written questions (“interrogatories”) are served on each side to be answered under oath. The parties may be required to produce documents for inspection by the opposing side. Depositions (asking questions under oath with a court reporter recording the questions and answers) can be taken of both sides and their witnesses. As each side designates which experts they intend to use at trial, depositions of those experts will be taken.Sometimes, one or more of the defendant’s experts will be entitled to personally examine the plaintiff to enable them to better understand the nature, cause and/or extent of the plaintiff’s injuries.
During the discovery process, the facts of a claim often become more clear and in some cases may be different than they seemed to be when the claim was first evaluated. We engage in a constant re-evaluation of the strengths and weaknesses of a case during this process. During discovery, and indeed at any time before or during trial, settlement of a claim may occur. The parties inevitably have a better understanding of the case after depositions of the experts have been completed, usually close to the trial date, and sometimes that is the point when settlement is most likely to occur. Many cases, though, will not settle.The costs of handling medical negligence cases are substantial, frequently running into many tens of thousands of dollars. Much of the cost involves the need to have expert medical testimony on issues of negligence, causation and damages. Each expert will charge for his/her time in evaluating the issues, meeting with your attorney, preparing for and giving a deposition, and testifying at trial. The more complex a case, the more experts are usually needed, the more time is spent, and thus the greater the cost.
In most cases, after we have agreed to represent a client following completion of our review, we advance the further costs of litigation and recover reimbursement of those costs when the case is resolved. We are always glad to advise you of the costs to date and what those costs represent, or to provide copies of the ledger which has a breakdown for each specific expenditure. In some cases, adverse information comes to light as the case proceeds, that causes us to change our evaluation of the chances that the case will be successful. When this happens, we may advise our client to discontinue the case. If a case proceeds to trial and is lost, the client may be responsible to pay the costs incurred by the other side.