Although there is no definite timeline as to how long a medical malpractice lawsuit takes, you can make a rough estimate. It usually ranges from six months to three years after all medical treatment has finished. This timeline is explained by the time taken by the representatives of both the medical provider and the patient needing time to gather all the required documentation comprising of evidence, receiving an expert’s report confirming malpractice, and the process of litigation. Notably, the length of time largely depends on whether there are complex issues surrounding the case and how fiercely the Defendant wants to fight the lawsuit.
For example, if it’s possible for the two parties to amicably reach a settlement agreement before the case is filed in court, the time is considerably reduced. Although this will save and expenses for both parties involved, it may also translate to a smaller award for the plaintiff. However, all trials come with a certain amount of risk, and if your attorney believes that there is a good chance you may come away with nothing, it may be better to avoid the risk of trial. On the other hand, if reaching a settlement out of court is proving hard to come by, then a full trial is inevitable and both parties will have to proceed to court.
Generally, a medical malpractice lawsuit process involves several stages. Additionally, it is highly recommended to have use the services of a qualified attorney to succeed in a medical malpractice lawsuit. Compared to other types of lawsuits, the legal process is complex and nuanced medical issues are the focus of the case. Each scenario is different and ought to be handled as such. While settlement may be available at any stage, the following is a step-by-step breakdown of the medical malpractice timeline:
Investigating and reviewing medical records
At this stage, the lawyer representing you will seek to get first-hand information from you as to the alleged medical malpractice. This will include both the medical condition in detail as well as the treatment offered. He/she will also require seeing the corresponding medical records, bills incurred, and your disclosure of any other medical history that may affect the case at hand. Your lawyer will thoroughly review these details and establish whether there exists a viable medical malpractice case. A considerable amount of time is taken to put all this into place, usually from three to six months.
Hiring a medical expert
After a thorough investigation and review of all evidence availed and there is a case at hand, the next step is to hire a medical expert. Preferably, the medical expert should be a specialist in the same field as the alleged medical malpractice. His duty is to review the medical records and give his opinion on whether the defendant fell short of the appropriate medical standard of care. As such, he will be required by the jury to testify and outline what the appropriate medical standard of care was under the circumstances – and how the doctor’s deviation from that standard contributed to the plaintiff’s injuries. The amount of time for the doctor to form and write his report depends on the expert, but could be one to several months.
Filing a lawsuit
The medical malpractice lawyer then files the lawsuit in court. It’s the court’s discretion to set the date for trial, and depending on how busy the court is, your trial may be set anywhere from six months to a year in the future. Notably, each county’s pretrial procedures are different, and so is the average length of time before the commencement of the actual trial. Additionally, each party may request a continuance to push the trial date further back.
Filing certificate of merit/offer of proof
This is an assurance that the medical malpractice case is valid and must be submitted by the plaintiff’s lawyer soon after filing the lawsuit and before the commencement of any pre-trial investigations. In addition, the lawyer is required to either submit a written opinion or affidavit asserting negligence provided by an independent medical doctor who reviewed the patient’s medical records. In this certificate, the lawyer confirms that he/she has discussed the case with a medical expert who believes that the medical standard of care was breached.
At this stage, litigation begins. This involves both parties investigating each other’s legal claims and defenses through written and oral questions. This is the lengthiest part of litigation, and varies widely in how much time is necessary. Depending on the number of witnesses and experts, discovery often takes anywhere from six months to one and a half years.
Mediation and Negotiation
Usually after or during discovery, lawyers may negotiate the patient’s settlement. This may be informally in phone call or emails, or the parties may come together for a formal mediation, where the patient’s presence is required.
If the two sides do not reach a settlement, the case proceeds to trial. It’s important to note that many other factors may affect the set date and push it further than anticipated.
With the above information, it should be relatively easier to understand the approximate amount of time that your case may take to finalize, if the above factors are put into focus. Most importantly, bear in mind that every case is unique; the best lawyer is the one who not only emphasizes working towards securing and expedient settlement, but also ensuring their clients get the maximum benefit possible.