Undertaking a medical malpractice claim can seem like a daunting process, but it doesn’t have to be. Understanding what to expect can help you make informed decisions throughout the process of your claim.
The following is a description of what to expect during a medical malpractice claim with us, broken down into 10 steps. Here, we will use a consultation about a potential birth injury case as an illustrative example of our process. The same steps would apply to any type of catastrophic medical malpractice case, but the specific questions asked would be different. Also, like a ladder, each step must be scaled in order to go on to the next. You can expect to be updated periodically.
Step 1 – Initial Free, No Obligation Consultation
The first thing we do is thank you for placing your confidence in us to advise you about an extremely important matter in your life and the life of your family. Next, we answer any questions you may have, and then go on to the first phase of information gathering. In a birth injury case, some of the questions we ask you include:
- Did any of your doctors or nurses become concerned about your baby’s well-being at any time during your pregnancy, labor, delivery, or over the first few days of life?
- How long before your baby’s birth were you hospitalized?
- Was an emergency delivery required?
- At around the time of birth: was your baby unresponsive? Did your baby have an abnormally low heart rate, poor color, or difficulty breathing? Did your baby receive chest compressions, or oxygen by mask—possibly even with the help of a ventilator?
- Did your baby have seizures or exhibit any seizure-like behavior such as twitching, unusual eye movements, or tongue thrusting at any time during the first few days of life? When? What medication, if any, was prescribed?
- How long did your baby remain in the birth hospital or any hospital your baby was transferred to before discharge? Was any of that time spent in an intensive care setting?
- Did your baby have an EEG, head ultrasound, or CT or MRI of the brain? Were any of the findings abnormal? What were the results?
- Has your baby been diagnosed with brain damage or cerebral palsy? Has any healthcare provider expressed an opinion as to the cause? What is your baby’s current condition? Have you been told what to expect going forward?
We then advise you if we think it would be wise to delve deeper. Key factors in arriving at our recommendation at this stage include the seriousness of your child’s injuries, whether there is a reason to suspect malpractice was to blame, and the amount of time remaining before a lawsuit would be barred.
If we advise moving forward, we go over our contingency fee retainer agreement. We explain we will receive a portion of any settlement or award recovered as our fee for services rendered and reimbursement of expenses we incurred in the pursuit of your case. The agreement clearly states that no fee is payable and no expenses are reimbursable unless you obtain a recovery.
We caution you to keep our communications confidential, to preserve relevant documents and records, and the importance of avoiding social media posts related to your case. We provide advice about other matters related to your case.
Step 2 – Use of Client Authorization to Gather Records
Our medical records department sends out authorizations and follows up until we receive the records and other materials we need in order to begin the process of evaluating the merits of your case.
Step 3 – In-house Analysis of Merits of Case
We conduct an in-house case evaluation, looking for evidence of violations of the standard of care, and evidence that links up your child’s injuries to any such violations. This involves putting many heads together, including our in-house board-certified physician. We also attempt to identify all potential defendants and confirm, to the extent possible at this stage, that there is no impediment to being able to recover substantial compensation for you and your family.
Sometimes, we conclude the potential defendants acted appropriately and that no preventable medical error occurred. While disappointing to clients, this sometimes can also bring relief and closure. However, we make clear that another law firm might come to a different conclusion.
Step 4 – Lining Up Expert Witnesses
We decide on the medical experts we may want to use to support your case, and testify at trial. We confer with them, send them medical records and other materials, and confer again. If we are satisfied with the quality of the case we have put together, we prepare a lawsuit, and review it with you.
Some defendants are entitled to be notified in advance that you intend to sue them, followed by a waiting period before the lawsuit can actually be filed.
On a very rare occasion, we will approach a defendant about the possibility of settling a claim before we file suit. This approach is reserved for those cases where our insight leads us to believe the defendant or defendants would want that opportunity because of special circumstances. Those cases might involve extreme and obvious medical negligence, or a doctor who already has been sanctioned for his or her conduct in the case at hand or similar cases.
Step 5 – Pre-trial Phase of Litigation
After suit is filed, but before your trial begins, there is much work to be done. This includes: more information gathering and disclosures to the other side, all part of a process known as “discovery”; raising and resolving legal issues, some of which may require a hearing; and preparing for trial.
The discovery process includes, for example, obtaining medical records and other discoverable written and electronic communications, and certain expert witness reports; obtaining from parties written answers to written questions; ascertaining the identity of expert witnesses a party may call to testify at trial and obtaining reports they prepared; and conducting verbal question and answer sessions called “depositions.” Depositions are transcribed and may be videotaped. If there is a dispute over whether information must be shared, a judge is asked to decide.
The parties may make various requests, known as “motions,” of a judge from the time a case is filed until the trial begins. Some motions may seek to end your case long before a jury ever has a chance to hear it. These requests may be based on claimed legal deficiencies in the lawsuit itself or the evidence that has been developed to support the lawsuit. Other motions may seek to limit or exclude altogether testimony of your experts.
Step 6 – Settlement Negotiations
While settlement negotiations typically begin and are concluded in the pre-trial phase of a case, on rare occasions they occur before a lawsuit is filed. Additionally, and fairly frequently, settlement negotiations can wrap up on the “courthouse steps” just before a trial is about to start, or even spill over into the trial.
Settlements afford both sides of litigation an opportunity to put an end to their legal battle. Sometimes settlements are reached with some defendants, but not with others. We will bring any offers to you and help you decide if the offer is one we are prepared to recommend that you accept.
We have a reputation for giving clients the confidence to say “no” to even substantial offers if they fall short of what they deserve. We know what it costs to care for a severely disabled child and we want those responsible to pay for that care and the additional harm they have caused.
A highly significant factor taken into account in negotiating a settlement is the amount of available insurance coverage the defendant or defendants have available to pay the claim. In some cases, funds can be obtained from defendants beyond the amount of insurance that is in place.
Step 7 – The Trial
By far, most medical malpractice cases that go to trial are decided by juries. An exception would be a case arising from negligent care rendered by a healthcare provider employed by the U.S. government.
Jury trials begin with jury selection. The parties have something to say about the jurors who will be deciding their case, but within certain limits. The goal of the jury selection process is to seat a jury that will decide the case fairly and impartially, and based exclusively on the evidence presented at trial.
After jurors are sworn to serve fairly and impartially, they are given a few preliminary instructions, letting them know what is expected of them and giving them a bit of guidance.
Both sides give opening statements, with the plaintiff going first. The plaintiff then presents his or her evidence. That evidence takes many forms including: testimony, documents, photographs, illustrations, and videos. The testimony that supports the plaintiff’s case must include expert testimony that identifies the standard of care that should have been followed but that instead was violated by the defendant, and that sufficiently links up the plaintiff’s injuries with the substandard care. Other expert testimony is necessary to prove the extent of the damages sustained by the plaintiff, including any lost earning capacity and the cost of required health and related care.
In birth injury and many other cases, we present a professionally shot day-in-the-life film, and a comprehensive life care plan that describes our client’s future care needs and the amount of money it will take to pay for them.
The defendant then presents the other side of the case. After all evidence is presented, the defense gets another crack at trying to keep the case out of the hands of the jury. If no such motion is made or the plaintiff wins that motion, which occurs in the vast, vast majority of cases, the jury is instructed on the law and how it should be applied to the case. (In some states jurors are instructed after closing arguments are given.)
The parties then present their closing arguments to jurors. Generally, the goal of each lawyer is to help the jury put the key pieces of evidence together in a way that benefits his or her client; or, to put it another way, to take one last stab at winning jurors over. Ultimately, we do our best to persuade jurors to award our clients the compensation they deserve.
Medical malpractice trials frequently last from one to several weeks, depending on the complexity.
After all this, the jury will be given instructions about what constitutes medical malpractice in that jurisdiction and what they must consider in reaching a verdict.
Step 8 – Jury Deliberations and the Verdict
Before jurors begin deliberations, a jury foreman will be selected, either by the court or by the jurors themselves. Jurors go over evidence, discuss their views, and take votes on issues of liability and, possibly, a damage award.
Eventually, the jury reaches a verdict and it is read in open court, or they hit a wall and are declared “hung,” in which event a mistrial is declared. What happens from there is up to the presiding judge, at least initially. State laws differ on whether a jury verdict in a civil case needs to be unanimous.
At times, pretty heated debates take place among jurors during deliberations. Jurors may request to have testimony read to them, or may have questions they would like answered. Counsel will have an opportunity to weigh in on if, or how, a question will be answered, but these decisions ultimately rest with the judge.
A jury that sides with a plaintiff will award an amount of compensation based on the damage and related evidence presented at trial. In many states the jury may divide the blame among the defendants, and may even include the plaintiff, if there was a basis to find the plaintiff negligently contributed to his or her injuries.
Step 9 – Post-trial Motions and Appeals
Jury verdicts are subject to revision by trial judges, and eventually appellate judges if an appeal is taken.
Following trials, any party who is dissatisfied with the verdict and wants to argue the jury verdict was inconsistent with the law or the evidence, may raise that argument in a post-trial motion, or an appeal, or both. For a defendant against whom a damage award has been made, the right to appeal is ordinarily subject to posting a bond to ensure payment in full in the event the appeal is lost.
A trial judge may choose to alter the amount of the verdict if he or she strongly believes the award is outrageously low or high, or he or she may strike down a verdict and grant a new trial, or even enter a verdict that is contrary to that of the jury.
Arguments about a jury verdict, and additional arguments that the trial judge erred in a ruling he or she made at any phase of the case, can also be made on appeal, assuming the aggrieved party took the necessary steps to preserve the right to appeal.
Step 10 – Finalization
Finally, if a case is settled, the parties will enter into a release agreement. In return for payment of the agreed upon amount, the plaintiff releases the defendant from any future liability. If the plaintiff improves, he or she doesn’t need to return any money to the defendant, but if the plaintiff gets worse, he or she is not entitled to recover any additional compensation from the defendant. The release provides finality for both sides.
In birth injury and other cases, where all or a portion of the recovery goes to a minor or to a person with a disability such that he or she is unable to oversee financial affairs, a trust is established to manage the funds recovered and to ensure that the child’s or impaired adult’s needs are met. Dispersal of funds from the trust is often guided by a life care plan and reasonable requests from legal guardians, usually the parents or a spouse.
If a settlement is reached on behalf of an adult who lacks the capacity to make financial decisions or a minor, the court must approve the settlement with a view toward what is in the plaintiff’s best interest.
Janet, Janet & Suggs is committed to helping you get the compensation you need to take care of your child. We do not charge any upfront costs and do not recover attorney’s fees until we obtain fair compensation or a favorable jury verdict. Contact us today for a free, no-obligation consultation to learn more about your rights and legal options.