What To Expect During a Medical Malpractice Lawsuit

Medical malpractice can be devastating. The emotional, physical, and financial toll of improper medical care can be overwhelming. Filing a medical malpractice lawsuit is one way to get comprehensive compensation for your injury.

If you’re considering a medical malpractice claim, this guide can help you understand what lies ahead, including the challenges you might face in the legal process. You should also talk to a medical malpractice lawyer to learn more.

Your Initial Consultation With a Lawyer

The first step in pursuing a medical malpractice lawsuit is to meet with experienced medical malpractice lawyers.

At an initial consultation, you’ll discuss why your case. The attorney will review your evidence, evaluate your claim’s strengths and weaknesses, and explain the legal process.

Medical malpractice cases are expensive and take time. The process of legal discovery and negotiations can stretch out for months. During this time, evidence-gathering costs, court costs, attorney time, and fees for expert testimony can stack up.

However, you don’t have to pay for an initial consultation. Lawyers most often handle medical malpractice cases on a contingency fee basis. This means the law firm will collect its legal fee if you win the case. However, you should ask how the firm handles expenses.

Before the Court Filing

You might need to take some procedural steps before you take your claim to court. In some states, you must send a notice to the medical provider before filing a lawsuit. For example, in California, you must give the medical provider at least 90 days’ written notice.

In many states, you must get a certificate of merit or affidavit from a medical expert confirming that your health care provider was negligent.

Filing the Medical Malpractice Lawsuit

Medical malpractice claims are based on negligence. To prove negligence, you need to show four elements:

• Duty: Doctors have a duty to provide the level of care that a reasonably skilled health care professional in the same field would show when there is a doctor-patient relationship.
• Breach: If they fail to show this level of care, they breach the duty of care.
• Causation: The doctor’s misdiagnosis or other negligent act caused you harm. This is often the most challenging element to establish in a medical malpractice case.
• Damages: You must show the malpractice caused losses, or damages.

You must prove these elements by “a preponderance of the evidence.” This means it’s more likely than not that your injuries occurred due to negligence.

Pay attention to the statute of limitations, which is a time limit for filing a lawsuit. This limit varies from state to state. Some states, such as Kentucky and Louisiana, only allow one year to file a medical malpractice lawsuit unless an exception applies.

Lawsuits alleging medical malpractice are generally filed in state trial courts. The court will issue a scheduling order after you file a complaint. The order will include a schedule for document filings, pre-trial meetings, and a potential trial.

The Discovery Process

The discovery phase is an information-sharing process. Both parties exchange information and continue to gather evidence for their side. This paves the way for settlement negotiations and trial preparation.

Gathering Evidence

Gathering evidence includes requesting medical records and sending interrogatories to the other side.

Interrogatories are written questions submitted by one party to the other. They require detailed responses under oath. For example, the other side might ask you to explain the impact of the alleged medical malpractice on your daily life.

Depositions

Depositions are sworn, out-of-court testimonies. Both sides schedule depositions to question witnesses. Lawyers for both parties attend depositions. A representative from the doctor’s malpractice insurance company may attend as well.

Your lawyer will prepare you for your deposition. They’ll cover the expected questions and explain how to handle objections. You should listen to each question thoroughly before answering. Keep your answers concise. Avoid speculation — stick to the facts. During deposition testimony, your lawyer will object to legally inappropriate questions.

Deposition transcripts can be used as evidence during your trial. The other side can use your deposition testimony to contradict your court testimony. Depositions also preserve testimony for use in court if a witness can’t attend the trial.

Alternative Methods of Dispute Resolution in Medical Malpractice Claims

Lawsuits don’t always go to trial. You can resolve your claim out of court in several ways, including settlement, mediation, and arbitration.

Settlement Negotiations

Most medical malpractice cases settle out of court. A settlement allows the case to be resolved without going to trial. A settlement means that both parties agree on the terms to resolve the case, including compensation.

Courts favor settlements because it saves the time and expense of a trial. With a settlement, the case isn’t left up to the uncertainty of a jury or judge’s decision.

Mediation

Mediation happens often in medical malpractice cases. Mediation means an impartial third party helps you and your doctor negotiate a mutually acceptable resolution. The mediator doesn’t make the final decision. You can return to litigation if you can’t agree on terms.

Arbitration

Arbitrations are also common in medical malpractice claims. Your agreement with your health insurance company might specify that disputes must be arbitrated. Most physicians also prefer that claims go to arbitration.

Arbitration has several advantages over filing a lawsuit. Arbitration is a private process and is cheaper and faster than litigation.

In a binding arbitration, an arbitrator decides the case. Arbitrators are often retired judges or lawyers. Your lawyer can question witnesses and present evidence just like a trial.

Trial Preparation

If there’s no settlement agreement, successful mediation, or arbitration, then the case moves to trial.

The pretrial stage includes motions to exclude certain evidence or testimony.

Your lawyer will prepare you and your witnesses for the defendant’s questions at trial. Your attorney will draft the opening and closing statements. They’ll also review and organize the evidence.

Medical Malpractice Lawsuit Compensation

If you successfully prove the elements of medical negligence, you’ll receive financial compensation. There are three types of damages:

• Economic
• Non-economic
• Punitive

Economic damages are measurable losses. This includes medical bills, medical expenses, and lost wages. Non-economic damages are intangible losses, such as pain and suffering. Punitive damages may also be available if the doctor’s actions were malicious or grossly negligent.

Keep in mind that some states have caps on non-economic damages in medical malpractice cases. So, the total amount of damages you recover may be limited.

Get Legal Help for Medical Malpractice

Medical malpractice law is complex. Medical malpractice lawsuits can take anywhere from 18 months to three years in the court system. If you or a loved one think your medical provider didn’t meet the standard of care, talk to a medical malpractice lawyer for guidance.