Process Of Medical Malpractice Court Cases

By James

The first step in pursuing a medical malpractice case is to retain an attorney. Unlike some other areas of the law, self-representation in these cases is not feasible. In fact, due to the financial resources and litigation expertise required, most attorneys do not accept medical malpractice cases. Plaintiffs should seek out a reputable law firm that specializes in medical malpractice.

The attorney will begin by conducting an in-depth evaluation of the factual circumstances surrounding the incident. Hospital records and other evidence will be gathered, and depositions (formal interviews for the purpose of recording sworn testimony) will be taken of the defendant and any witnesses. A medical expert, who will later be available to testify at trial, will then review the evidence and draft a report for the plaintiff.

The expert’s report will be turned over to the defendant’s attorneys and insurance adjuster, and settlement negotiations will take place. If the two sides can agree on the amount of damages that should be paid, they will enter into a settlement agreement. The plaintiff will be compensated, and the case will end. If the parties cannot agree, the case will proceed to trial. A judge or jury will then decide the outcome.

During the entire process, the plaintiff’s attorney must comply with a variety of procedural requirements. A single misstep can result in the case being dismissed. These requirements include a statute of limitations, which is a strict deadline for filing the paperwork to initiate the lawsuit. Depending on state law, the case may have to be presented to a medical review board prior to filing suit, and special notices to the defendant may be required.

Patients trust doctors to perform their duties with care. However, when preventable accidents occur during the course of medical treatment, injured patients and their families often encounter insurance companies that want to deny compensation, or pay far less than they should. If medical malpractice is suspected, the best way to protect a patient’s rights is to contact a qualified attorney. Medical malpractice lawsuits are not those types of cases which a plaintiff (complainant) can deal on your own. To bring a medical malpractice case in court and don’t know what goes on in these typical cases then this article will help to get a better idea of the timeline and standard events of medical malpractice cases.

Choose The Right Legal Representative

The first step is to choose a right lawyer that will represent the plaintiff in the court. Plaintiff met a number of lawyers and talk to them about his case. The case will start after choosing the lawyer and signing the fee agreement.

Review And Investigation Of Medical Records

After the case begins the first step the lawyer take is to thoroughly interview his client about the medical treatment and conditions. A lawyer must know and make sure that everything about the client’s treatment and the condition is now in his knowledge too. The next thing is getting all the medical bills and record of the patient which is related to the malpractice and record of the treatments client had regarding the malpractice issue. Completing this step can take several months. After all the records are gathered, are then reviewed by the lawyer to see if the claim can be made from a legal perspective. Because there are many cases in which the lawyer after reviewing the record determine and tell the client that no malpractice case can be made.

If according to the lawyer that the client may have a medical malpractice case, then he will search an appropriate medical expert witness and will hire him. To get the malpractice lawsuit to trial, a medical expert (a doctor who practices as a defendant in the same field) must be hired. Medical expert issues an opinion after reviewing the records that the cause of the harm and damage is due to the carelessness of the defendant.

Consider Making Negotiations And Demands

In many cases of personal injury, a financial settlement is made before the lawsuit is filed in the court. These types of settlements are not typical but they do happen. More often in big medical malpractice lawsuits and especially when the insurance companies are not interested in pre-lawsuit settlements until the case has been filed and they had the chance of a pre-trial investigation.

Filing The Lawsuit

The claim is then filed by the lawyer. A lawsuit/claim is generally called a Writ or a Complaint. Pre-trial procedures of every state are different but before getting to trial these procedures usually take a year and a half to three years after the case is filed.

Affidavit of Merit

In many states, after filing the case the lawyer of plaintiff must submit an Affidavit of Merit or the Offer of Proof before the start of a pre-trial investigation. This Certificate of Merit ensures that the case is a genuine malpractice case. Depending upon the laws of the individual state, either an affidavit from the lawyer is submitted which affirms that the case was discussed with the qualified physician or a written negligence opinion from a doctor who reviewed the medical records of the plaintiff.

Discovery, Mediation, and Trial

The trial begins and discovery process starts after the approval of the Certificate of Merit or the Offer of Proof by the judge. In a discovery process, both parties investigate the defenses and legal claims of the adversary. The duration of discovery process depends on the deadlines of the court, usually lasts more than a year. In a medical malpractice case, the medical records are one of the most vital pieces of evidence in the case.  Since the patient has the burden of proving negligence against the health care provider in a medical malpractice case, the written medical record can make or break a case.  Unfortunately, the medical record is often not recorded contemporaneously as the medical treatment occurs and thus, vital information is often omitted or not included in the records.  It is also not uncommon for medical records or parts of it to be lost from the permanent record.

Sworn deposition testimony is also one of the most important elements of evidence.  Particularly, the deposition of the defendant doctor or nurse involved in the care of the patient.  Testimony can fill gaps in the medical records and provide explanations which are not contained in the written medical record.  Sometimes, the sworn deposition testimony of the doctor or nurse contradicts what is in the written medical record.  At the Cochran Firm - Metairie, it is not uncommon for our attorneys to spend 40 or more hours preparing for the deposition of the defendant doctor. After the end of the discovery period, lawyers discuss the settlements. Sometimes the case is settled by the discussion of both parties. In other cases, both parties approach a mediator to settle their case. The case gets to trial if mediation does not work. The duration of the trial is a more than a week.

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