When a doctor or other medical professional commits malpractice that harms a patient, the injured patient should explore all of his or her legal options. If the malpractice caused a patient’s death, the patient’s surviving family members should learn about their own right to take legal action. Depending on the facts and circumstances, the patient or survivors may be eligible to file a medical malpractice claim.
Every medical malpractice case is different. Some cases may result in a settlement, including many cases which settle in a fairly short amount of time. In other cases, the patient or surviving family members may need to fight all the way to trial. The outcome could require years of litigation.
Here, we discuss the basis steps in a medical malpractice case and the many different factors which can contribute to how long it takes for a medical malpractice case to conclude, whether by settlement or trial.
If you believe that you or a loved one has suffered harm due to medical malpractice, contact The Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates. Dr. Wilson is an attorney and a physician who can bring a unique combination of experience and insight to your case. For more than 30 years, he has protected the rights of injured patients and their families in Washington, D.C., Maryland and throughout the country. He can review the specific facts of your case in a free consultation.
Initial Case Investigation
Consultation. An investigation actually starts with your initial consultation. An attorney will learn the basic details about your case and determine what steps to take next. During the consultation, an attorney can explain the factors which may contribute to the length of a case such as:
- Complexity of the medical procedure and/or injuries
- Whether evidence is readily available or will be challenging to collect
- Type and/or number of medical experts who must be consulted
- The defendant’s willingness to accept liability and/or damages
- The court’s docket and schedule
- The amount of evidence presented at a trial.
Records review. Often, one of the first steps that a medical malpractice attorney takes after the consultation is to obtain all of the medical records that are relevant to a patient’s case. The process of gathering and reviewing these records can take time to complete. For this reason, it is important to contact an attorney as early as possible if you suspect an injury due to malpractice.
Gathering other evidence. In addition to gathering medical records, your attorney will want to speak with witnesses and collect and study other evidence such as photographs.
Expert consultations. Your case may involve a number of highly technical issues that require review by medical professionals. For instance, a physician who practices in the same specialty as the one involved in your case, typically, will need to assess the standard of care and whether the physician in your case failed to meet that standard. Also, a life-care planning expert may need to assess the type of care you will need as you move forward and the costs involved with that care.
Notice to the defendant. In Washington, D.C., you must give the defendant 90 days’ notice prior to filing a lawsuit. In most other jurisdictions, you must also file some form of “certificate of merit,” in which a qualified expert certifies the validity of the malpractice lawsuit.
The discovery phase may be the longest stage in a medical malpractice case. After you file a lawsuit, and the defendant responds, you enter this phase in which both sides exchange information, with court supervision. It is called “discovery” because both sides will discover evidence through steps such as:
- Interrogatories. These are written questions that each side must answer for the other side. They help the attorneys plan their case and better understand the strengths and weaknesses of each side’s case.
- Production requests. Each side also gets to issue a set of requests for documents and other tangible evidence like photos, video or other records.
- Depositions and affidavits. You and your attorney have an opportunity to ask questions of the defendant or certain other witnesses prior to trial. The same is true of the defendant. Depositions and affidavits can help to determine the strength of a case and forecast what would happen at trial.
In some cases, the attorneys may need to get subpoenas in order to obtain information, or they may need to ask the court to compel the other side to comply with lawful discovery requests. If difficulties arise during discovery, it will prolong resolution of the case.
Each jurisdiction has its own unique way of handling medical malpractice cases. In Washington, D.C., the law requires the parties to attempt to mediate their dispute out of court. This process is not binding. In other words, either side can reject the process and refuse to settle. However, it must be performed. Many cases settle because the mediation process helps each side to realize the likely outcome if the case goes to trial. It serves as a bit of a reality check.
Whether a case settles typically depends on the strength of the evidence of liability and whether the parties can agree on the amount of damages. A mediator is usually an experienced lawyer or former judge. The mediator’s goal is not to advocate for either side but to help each side to assess their cases’ potential strengths and weaknesses and facilitate a settlement.
What Happens If a Medical Malpractice Lawsuit Settles?
If the defendant makes a settlement offer that provides full and fair compensation and otherwise meets your objectives, you may accept the offer. Your case will then need to go through two basic steps before you can receive compensation. Those steps include:
Signing of a release. In a release and settlement agreement, you will basically agree to release and discharge the named defendant(s) from any and all claims in exchange for an admission of liability and/or payment of funds. Your lawyer must carefully review all language in a release and settlement agreement in order to ensure that your rights and interests are protected.
Payment by the defendant(s). Typically, the insurance company for the defendant(s) will provide payment to your lawyer. The lawyer will then deposit the funds in a trust account and move as efficiently as possible to resolve matters such as:
- Payment of medical bills or liens
- Payment of case-related expenses (such as court costs and expert fees)
- Payment of attorney fees (typically an agreed-upon percentage of the recovery)
- Disbursement of funds to you.
How settlement funds get disbursed varies from case to case. Some clients may want a lump-sum payment, a series of payments or placement of the funds into a special type of trust account (which is common when the harmed patients are minors or disabled adults).
What Happens If a Medical Malpractice Lawsuit Does Not Settle?
Simply put, if the sides cannot settle, the case will proceed to trial. Each side will have an opportunity to present its case to the jury and make arguments. The jury will decide whether the defendant committed malpractice. If so, the jury will return a verdict in a specific amount, and the court will enter a judgment.
Either side may file post-trial motions or appeal from the judgment. Post-trial litigation can greatly extend the time it takes to resolve a case. Some cases are settled during trial or even after a trial concludes.
How Long Do You Have to File a Medical Malpractice Lawsuit?
As you are trying to decide what to do next, just keep in mind that all jurisdictions, including Washington, D.C., have statutes of limitations that limit how long you can wait to pursue your case. Generally, most lawsuits for medical malpractice in Washington, D.C., must be filed within three years of the negligent act or omission. However, certain exceptions can apply such as:
- Discovery rule. The statute of limitations may not start to run until the individual has discovered (or reasonably should have discovered) the malpractice. This rule often applies to cases which involve a missed or delayed diagnosis of a condition.
- Children. If the patient was under age 18 when the medical malpractice occurred, the statute of limitations will not start to run until the child turns age 18. However, this exception does not apply to parents’ claims.
- Disabled adults. For adults who lack the conscious ability to protect their own rights, the law allows the statute of limitations to be “tolled” until the person’s mental infirmity is cured, or the individual passes away.
Get Immediate Help from a Washington, D.C., Medical Malpractice Lawyer
Dr. Wilson is not only an attorney with more than 30 years of medical malpractice experience, he is also a physician with a medical degree from Georgetown University. He knows how to efficiently and effectively investigate and evaluate medical malpractice cases. For immediate attention to your case, call or reach him online today for a free consultation.
Dr. Michael M. Wilson is an attorney and a physician who earned his undergraduate degree from the Massachusetts Institute of Technology and his legal and medical degrees from Georgetown University. He has focused in the area of medical malpractice for more than three decades and secured more than $100 million in settlements and verdicts on behalf of clients throughout the country. He is admitted to practice in the District of Columbia and New York as well as the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. He is listed in America’s Top 100 High Stakes Litigators.