Medical Malpractice Guide. Step-By-Step Process To Medical Malpractice Cases.
Step 1: Assessing A Possible Medical Malpractice Lawsuit Case
Knowing if You Can Bring a Possible Medical Malpractice Lawsuit
Did you or a loved one go in for a medical procedure and come out worse than when you went in? Did your doctor or hospital fail to diagnose that you had cancer? Did a surgeon perform surgery on the wrong body part (yes that happens sometimes) or leave a surgical tools inside your body? Did your physician give you too much or too little medication causing you to suffer harmful side effects? Did your radiologist miss something on your x-ray or CT scans? Did you get an infection while staying at your hospital? Did your obstetrician OBGYN use forceps improperly or wait too long to perform a cesarean C section resulting in birth injuries and defect to your newborn baby? These are all examples of situations that could be the result of medical malpractice. However, just because you experienced a complication or injury or bad result from your healthcare provider does not necessarily mean that there has been malpractice, only that further investigation may be warranted to determine if malpractice occurred.
So, if you were injured after receiving healthcare services and believe that your doctor, hospital or healthcare provider may have been negligent in some way (i.e., failed to reasonably perform their duties in accordance with the appropriate standard of care), you should consult with a medical malpractice attorney or medical malpractice lawyer. Many people just assume that because a “well-known” doctor or “big” hospital was involved, their conduct must be legal. That’s not necessarily the case. While most health care providers intend to exercise the highest standard of care for all patents, even the best doctors and hospitals makes mistakes sometimes.
In the end, the best advice is to simply trust your instincts: if you think you might have a potential medical malpractice case, it is usually worth having an attorney look into it. But don’t delay. Like most personal injury lawsuits, medical malpractice lawsuits have certain time limits called statutes of limitations and statutes of repose by which medical malpractice cases must be filed or forever barred. Although there are exceptions, in malpractice cases plaintiffs generally have two years from the date the claimant knew or should have known of the injury or death for which damages are sought (but in no event more than 4 years after the date of the act or omission alleged to have been the cause of such injury or death).
Deciding if You Want to Pursue a Medical Malpractice Lawsuit
Just because you may be able to bring a medical malpractice lawsuit, does not necessarily mean that you should. Or that you want to. There are many reasons people decide to bring medical malpractice suits. Some want to simply hold someone accountable for their suffering. In the end, however, medical malpractice lawsuits and medical malpractice settlements are about money, about compensating victims for their losses.
Medical malpractices cases can be complex, of long duration, expensive and often emotional. While the rewards of a successful medical malpractice claim can be substantial, for some people it is just not worth it. If the injuries are not serious or permanent type injuries, a medical malpractice case may not be worth the trouble. Since medical malpractice attorneys and lawyers typically advance the costs of bringing med mal cases, some attorneys won’t even take on those case kinds of cases. So, even if you might be able to bring a medical malpractice, you need to decide whether it is something that you want to pursue.
Step 2: Hiring The Right Medical Malpractice Lawyer or Attorney
There are many excellent medical malpractice attorneys and lawyers. Because medical malpractice law is fairly specialized, you should look for a lawyer with significant medical malpractice experience (as opposed to only auto accident experience or other personal injury experience).
Additionally, because there are many different types of medical malpractice cases, you may want to look for a medical malpractice attorney who has specific experience in the type of medical malpractice case you wish to bring. In other words, medical malpractice lawyer who regularly brings birth injury and birth defect lawsuits might not be the best choice for a failure to diagnose cancer case and vice-versa. Finally, it is probably a good idea to ask any medical malpractice attorney you’re considering a lot of questions before hiring him or her. If you feel that you don’t communicate well with the medical malpractice lawyer or it just does not appear to be a good fit, talk to someone else.
Once you have found a medical malpractice attorney you are comfortable with and they wish to proceed with investigating and/or pursuing your medical malpractice case, they will provide you with a retainer agreement or contingent fee agreement that must be signed in which you agree to hire the medical malpractice lawyer and they agree to work with you as a client. You should always feel free to have an advisor or another attorney look over the agreement before signing if you so wish.
Step 3: Pre-Suit Investigation and Hiring A Medical Expert
Medical Malpractice Attorney or Lawyer Interview
A medical malpractice attorney needs to understand the “facts” i.e., what happened to you in order to evaluate your case. The attorney or other personnel from their law firm will usually interview you, in person or over the phone, asking you all sorts of questions about your injury, disease, illness or medical condition, your health history, background, how the medical malpractice happened and who was involved, how it has affected you and your family and so on. It is important to be truthful and forthcoming with your attorney concerning information that potentially pertains to the case. Communications with an attorney about a particular matter are generally privileged and confidential (and this is true even if you don’t ultimately hire the attorney to handle your case), so you should not hold back.
Many medical malpractice lawyers recommend that you begin documenting everything that happens after the medical malpractice: dates of surgeries and visits, names of doctors, nurses, healthcare providers, lab and test results, etc.
Review of Medical Records and Other Documentation
Your attorney will need to review your medical records, medical bills and other documentation relating to your case. You may be asked to get copies of your medical records or you may be asked to sign various Medical Release Authorizations to allow your attorney or his or her law firm to obtain the relevant medical records. Your medical malpractice attorney may do medical research and review medical literature relating to your specific case.
Hiring a Medical Expert and Obtaining A Pre-Lawsuit Medical Expert Report
Appropriate medical experts who practice in the field of the alleged medical malpractice will be consulted to provide an independent review. Indeed, in Illinois, in medical malpractice cases in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, Code of Civil Procedure, 735 ILCS 5/2-622, requires, among other things, the filing of an affidavit that basically says that the medical malpractice attorney consulted and reviewed the facts of the case with a health professional (i.e., medical expert) who is knowledgeable in the relevant issues involved in the particular action; practices or has practiced or teaches or has taught (all within the last 6 years) in the same area of health care or medicine that is at issue in the medical malpractice case and is qualified by experience or demonstrated competence in the subject of the case and who has determined in a written report, after a review of the medical records that there is a reasonable and meritorious cause for the filing of such action.
Step 4: Filing the Medical Malpractice Lawsuit
Drafting The Medical Malpractice Complaint
After you have hired a medical malpractice attorney, one of his or her first steps will be to investigate the medical malpractice case and prepare a “complaint.” A medical malpractice complaint is the legal document that starts a medical malpractice case. It explains the factual basis for the medical malpractice lawsuit and explains why, assuming those facts are true, the defendant should be legally responsible for medical malpractice.
Where to File Your Medical Malpractice Lawsuit
One of your medical malpractice attorney’s key considerations will be where to file the medical malpractice lawsuit. Most medical malpractice lawsuits are filed in state court, but sometimes medical malpractice lawsuits may be filed in federal court. Also, medical malpractice lawsuits are usually filed in the county of residence of any defendant or in the county where the malpractice or some part of it occurred.
Step 5: Discovery and Motions For Summary Judgment or to Dismiss The Medical Malpractice Lawsuit
Formal and Informal Discovery
The discovery phase of medical malpractice lawsuit is where both sides can obtain information and evidence from each other and from third parties to support their claims or defenses. This may include, for example, formal requests for documents (medical records, medical bills, doctors notes, etc.), interrogatories (written questions requiring written answers) and depositions (oral questions requiring oral answers). It may also include information discovery and interviews of witnesses, etc. Typically, after discovery has completed, the parties will have a better feel for how strong or weak their claims and defenses are.
Motions for Summary Judgment
At the end of this discovery process, the medical malpractice defendant may make a final effort to have the medical malpractice case thrown out by asking for “summary judgment.” In other words, the defendant asks the court to take a look at the case now that the evidence has been gathered, arguing that the case is without legal merit. Assuming the medical malpractice case survives summary judgment, it will proceed to trial, unless it is settled.
Step 6: Negotiating A Medical Malpractice Settlement
At some point before or during the medical malpractice litigation, a demand for settlement is made upon the defendant(s) and its insurance carrier, often times consisting of a detailed written document with supporting medical records arguing the strengths of the case and weakness of the defendants defenses. Often this will result in further negotiation and the case being settled. Sometimes the settlement negotiations are informal between the lawyers and clients only; however, often the parties will engage in formal settlement negotiations before a mediator or arbitrator in a settlement mediation or arbitration.
Step 7: Medical Malpractice Trial and Appeals
Not all medical malpractices case go to trial. Many are settled. Some are dismissed for one reason or another. But if a case is not dismissed and a settlement cannot be reached, a medical malpractice case will proceed to trial. Some medical malpractice trials can last days, others can last weeks. Most medical malpractice trials in Illinois are decided by a 12 person jury. Once the trial is over and decided, either side may try to overturn or reverse the decision by filing a post-trial motion with the court or by filing an appeal with an appellate court.
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