If you’ve suffered harm because of medical malpractice, you might wonder what will happen if you file a claim against the medical professional responsible for your condition or injuries. Malpractice lawsuits are different from other personal injury lawsuits because they have different procedural requirements, largely to prevent frivolous lawsuits.
Our medical malpractice lawyers outline the steps of what happens in a malpractice lawsuit below so you can better understand what’s to come if you bring a lawsuit against a medical professional who harmed you.
Malpractice Lawsuit Guide
- Free Consultation With an Experienced Attorney
- Gather Relevant Documents and Records
- Investigating Your Claim
- Select Expert Witnesses
- Pre-Trial Discovery
- Settlement Negotiations
- Jury Deliberations and Verdict
- Final Resolution of Your Medical Malpractice Case
Free Consultation With an Experienced Attorney
Medical malpractice lawsuits are notoriously complex. Hospitals, doctors, and their insurance providers have large, intimidating legal teams that will take every measure to deny or devalue your claim. It’s in your interest to consult with an experienced medical malpractice lawyer to discuss the details of your case and let them represent you and advocate for you.
Skilled lawyers know the questionable tactics insurance companies use and often can anticipate their moves before they make them. Also, legal counsel sends a message that the other side needs to take your claim seriously.
Your initial meeting with an attorney allows you to share your story and ask questions about the legal process of filing a malpractice lawsuit. Additionally, the lawyer you meet with can ensure the statute of limitations for your case has not run out. If it has, your lawyer can evaluate whether you qualify for one of the rare exceptions that pause the statute of limitations time clock.
Gather Relevant Documents and Records
Once you are ready to move forward with your case, you will likely enter a contingency fee agreement with the law firm representing you. You do not have to pay upfront fees to hire a medical practice attorney like you would with a divorce lawyer or tax attorney. A contingency fee agreement permits the law firm to deduct attorney fees and other representation costs from any settlement money or court-awarded damages you receive on behalf of their efforts.
Before formally filing a medical malpractice lawsuit, your lawyer will gather as much information as possible to build your case. Getting copies of your medical records, including your entire medical history, is of the utmost importance. This step is not always easy, even with your authorization. Doctors and treatment facilities sometimes play games, so recovering all relevant records can take months in some cases.
Investigating Your Claim
[At this point, you have told your story to your medical malpractice lawyer, but they need to uncover all the case facts to support your claim. Many law firms have in-house investigators, but those who do not regularly work with one or two outside investigators to collect more information. The goal of an investigation is to look for violations of standards of care and how they relate to your illness, injury, or condition.
An investigation might include talking to other patients, medical professionals, and relevant parties to learn more about the doctor or other medical professional who harmed you. During an investigation, lawyers identify all possible defendants and learn about potential challenges or obstacles with a case. An investigation usually indicates if a case must go to trial or if a claimant can pursue other options to resolve their claim.
Select Expert Witnesses
In most states, medical malpractice claims come with procedural requirements that claimants must comply with before they file a lawsuit. The requirements vary from state to state but typically include some notice to the defendant and certification of the claim by a medical expert. For example, Pennsylvania requires a Certificate of Merit before filing a malpractice lawsuit.
At this point in the legal process, your lawyer will find one or more medical experts to support your malpractice claim. The experts receive records and detailed information about your case to prepare necessary documents, depositions, and possible witness testimony in court. The medical expert that certifies a case is not always the same witness who provides deposition and testimony in a malpractice case.
Notice of Intent and Certificate of Merit
At this point in the legal process, your attorney will file court documents for a malpractice lawsuit. The initial step might be filing a formal complaint or sending a Notice of Intent to each person you intend to name in the medical malpractice lawsuit. A formal complaint includes information about your injuries and surrounding facts, the legal basis for your complaint, those you name as a defendant, and the damages you seek.
A Certificate of Merit, sometimes referred to as an Affidavit of Merit, must accompany the Notice of Intent or Formal complaint. Some states allow 30 to 60 days after filing the formal complaint to submit the Certificate of Merit. Your medical malpractice lawyer will advise you on what deadlines and requirements specifically apply to your case. The Certificate of Merit is a notarized document in which a medical expert confirms that a patient has a viable medical malpractice claim.
Most medical malpractice claims depend on negligence, which relies on the accepted standard of care within the medical community. A negligent medical professional has a duty of care toward their patient and breaches that duty when they do not provide the accepted standard of care.
The Certificate of Merit typically asserts one of the following statements:
- Based on the evidence, the expert believes it’s reasonably probable that the medical provider deviated from the accepted standard care.
- The defendant was responsible for the person alleged guilty of malpractice.
- The facts of the claim are so strong, and the malpractice is so egregious that expert testimony is not needed to pursue the claim.
Some states schedule a hearing regarding the Certificate of Merit to verify its contents and let a judge give the go-ahead. In states that do not require hearings, the defense attorney might raise an issue about the Certificate of Merit. Your medical malpractice attorney will ensure you follow the laws that apply to your situation and meet all deadlines.
Assuming the court accepts your case, pre-trial discovery is the next phase in a medical malpractice lawsuit. Depending on the exact procedures in the state of your medical malpractice lawsuit, the court could reject your Certificate of Merit. If this happens, your case is likely dead in its tracks. However, you might appeal or amend your Certificate of Merit to get permission to pursue the lawsuit from the court. Your lawyer will advise your legal options if your Certificate of Merit gets rejected.
The pre-trial phase of a medical malpractice lawsuit can last a few months or years, depending on the circumstances of your case. Recovery is perhaps the biggest factor impacting the timeline of your claim. Your lawyer needs to know the full scope of your injuries before considering any settlement offers or going to trial.
Unfortunately, many medical malpractice victims do not always completely heal from their injuries. However, your lawyer needs to wait for your doctor to confirm you have reached your maximum medical improvement, which is the point at which your injury or condition will not get any better. The other side will also want to wait to go to trial to give you a chance for a full recovery, which will cost them less than the payout for a permanent injury or condition.
During the pre-trial discovery period, your medical malpractice attorney will continue to build your case, even while waiting for a long-term prognosis report from your doctor. This process includes gathering evidence, especially witness statements, and taking your deposition and the deposition of the medical professionals you named in your lawsuit.
Settlement negotiations can occur the night before going to trial or five minutes before walking into the courtroom. However, settlement negotiations usually begin during discovery in medical malpractice cases and other personal injury cases. It’s in everyone’s interest to avoid litigation.
Going to trial is expensive, and the longer it drags on, the more it costs. However, sometimes going to trial is a claimant’s strongest option to receive compensation for damages after suffering harm due to medical malpractice.
It’s common for the defense to make an early settlement offer, especially if they believe the claimant has a strong case. However, these offers typically come before you know the full scope of your injuries and whether you face a permanent condition or disability.
Your lawyer will handle communications with the other side, likely the negligent party’s insurance provider. Typically, the first settlement offer is far lower than a fair or reasonable offer for someone’s injuries. But, it does serve as a starting point for negotiations.
Negotiations can last months, sometimes longer. Sometimes they lead to a resolution without going to trial, and other times they fail miserably. Each case is different, and some are more likely to go to trial than others. Typically, however, the other side will dispute that the value of your claim is too high. They will do everything they can to reduce their potential payout. If you cannot reach an agreement with the other side, your medical malpractice attorney will take your case to trial.
Medical malpractice trials typically take at least a week, and some last a month. During the trial, each side has an opportunity to present its case to the jury. After opening statements, each side calls witnesses to give or present previously recorded testimony to the jury.
If your case goes to trial, you will likely have to tell the jury about your injuries and how they impact your life. Your medical malpractice lawyer will advise you on whether you need to testify. The court typically likes to hear from victims, but age, disability, or other obstacles prevent can people from testifying.
Jury Deliberations and Verdict
Once both sides rest their cases, the jury meticulously reviews the evidence and discusses the aspects of the case to reach a verdict. In civil lawsuits, the standard of proof is lower than in criminal cases.
Instead of finding someone guilty beyond a reasonable doubt, the jury must decide if it’s more likely than not that the medical provider(s) you sued owed you a duty of care, breached their duty, and their breach caused your injuries. If they rule in your favor, they will also come back with a dollar amount for damages.
If you do not get the outcome you hope for from a jury trial, you have the right to appeal. Your lawyer can answer questions about an appeal, if applicable. Similarly, the other side can also choose to appeal the case if they find court-awarded damages are higher than they hoped.
Final Resolution of Your Medical Malpractice Case
The final resolution of your medical malpractice lawsuit happens when you reach a settlement or after the trial ends. If your case settles, you must sign an agreement that releases the defendant from future liability. This release means you cannot seek more compensation from the negligent party for the same injuries in the future if your condition worsens.
Typically, the insurance company pays the settlement or court-awarded damages (Depending on your medical malpractice coverage) to the plaintiff’s lawyer. The lawyer will deduct their attorney fees and other legal costs related to the case. They will also take care of any unpaid medical expenses related to the injuries before giving the remainder to the plaintiff.
Each medical malpractice lawsuit is different. However, many follow the pattern discussed above. The best way to know what will happen with your medical malpractice lawsuit is to contact an experienced medical malpractice attorney for a free consultation to evaluate your case and give you an idea of what to expect.