Medical Malpractice Guide. Step-By-Step Process To Medical Malpractice Cases
Below is a general guide to how a typical medical malpractice case might progress. Not all medical malpractices cases are alike and the process can vary from one case to another depending on the circumstances.
Step 1: Assessing A Possible Medical Malpractice Case
The first step in the process is to assess a possible medical malpractice case. You need to know if you can bring a possible medical malpractice case and if so, decide whether you want to pursue a medical malpractice case. If you are not even sure what “medical malpractice” is, you should find out.
Step 2: Hiring The Right Medical Malpractice Lawyer
The second step in the process is to hire the right medical malpractice attorney for you and your family. Once you have found a medical malpractice attorney you are comfortable with and they wish to proceed with investigating and/or pursuing your medical malpractice case, the attorney should provide you with a retainer agreement or contingent fee agreement that must be signed in which you agree to hire the medical malpractice lawyer and they agree to represent you as their client. You should always feel free to have an advisor or another attorney look over the agreement before signing if you wish. Finally, it is probably a good idea to ask any medical malpractice attorney you’re considering a lot of questions before hiring him or her. If you feel that you don’t communicate well with the medical malpractice lawyer or it just does not appear to be a good fit, talk to someone else.
Step 3: Pre-Suit Investigation and Hiring A Medical Expert
The third step in the process is the pre-suit investigation. This step involves gathering facts, reviewing records, interviewing witnesses, and obtaining a pre-lawsuit medical expert report, among other things.
A medical malpractice attorney needs to understand the “facts” i.e., what happened to you in order to evaluate your case. The attorney or other personnel from their law firm will usually interview you, in person or over the phone, asking you all sorts of questions about your injury, disease, illness or medical condition, your health history, background, how the medical malpractice happened, what kind of medical malpractice case you may have, who was involved, how it has affected you and your family and so on. It is important to be truthful and forthcoming with your attorney concerning information that potentially pertains to the case. Communications with an attorney about a particular matter are generally privileged and confidential (and this is true even if you don’t ultimately hire the attorney to handle your case).
Many medical malpractice lawyers recommend that you begin documenting everything that happens after the medical malpractice: dates of surgeries and visits, names of doctors, nurses, healthcare providers, lab and test results, etc. Your attorney will need to review your medical records, medical bills and other documentation relating to your case. You may be asked to get copies of your medical records or you may be asked to sign various Medical Release Authorizations to allow your attorney or his or her law firm to obtain the relevant medical records. Your medical malpractice attorney may do medical research and review medical literature relating to your specific case.
Appropriate medical experts who practice in the field of the alleged medical malpractice should be consulted to provide an independent review. In Illinois, in medical malpractice cases in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, Code of Civil Procedure, 735 ILCS 5/2-622, requires, among other things, the filing of an affidavit that essentially says that the medical malpractice attorney consulted and reviewed the facts of the case with a health professional (i.e., medical expert) who is knowledgeable in the relevant issues involved in the particular action; practices or has practiced or teaches or has taught (all within the last 6 years) in the same area of health care or medicine that is at issue in the medical malpractice case and is qualified by experience or demonstrated competence in the subject of the case and who has determined in a written report, after a review of the medical records that there is a reasonable and meritorious cause for the filing of such action.
Step 4: Filing the Medical Malpractice Lawsuit
The fourth step in the process is filing the medical malpractice lawsuit. This step includes drafting and reviewing a legal “complaint.” A medical malpractice complaint is the legal document that starts a medical malpractice case. It explains the factual basis for the medical malpractice lawsuit and explains why, assuming those facts are true, the defendant should be legally responsible for medical malpractice. This step also involves deciding where to file the case, who you might sue for medical malpractice, and other matters pertinent to the filing of the lawsuit.
Most medical malpractice lawsuits are filed in state court, but sometimes they may be filed in federal court or in other tribunals. Also, medical malpractice lawsuits are usually filed in the venue of the county of residence of any defendant or in the county where the malpractice or some part of it occurred. Finally, this step involves actually lodging the complaint with the relevant courthouse or tribunal to initiate the lawsuit.
Step 5: Discovery and Motions for Summary Judgment or Motions to Dismiss the Medical Medical Malpractice Lawsuit
The fifth step in the process is discovery and motion practice. This step involves obtaining additional information and evidence from both parties to the lawsuit and third parties. This “discovery” phase of the case is where both sides can obtain information and evidence from each other and from third parties to support their claims or defenses. This may include, for example, formal requests for documents (medical records, medical bills, doctors notes, etc.), interrogatories (written questions requiring written answers) and depositions (oral questions requiring oral answers). It may also include information discovery and interviews of witnesses, etc. Typically, after discovery has completed, the parties will have a better feel for how strong or weak their claims and defenses are.
At the end of this discovery process (and sometimes before), the medical malpractice defendant may make a final effort to have the medical malpractice case thrown out by asking for “summary judgment.” In other words, the defendant asks the court to take a look at the case now that the evidence has been gathered, arguing that the case is without legal merit. Assuming the medical malpractice case survives summary judgment, it will proceed to trial, unless it is settled.
Step 6: Negotiating a Medical Malpractice Settlement
At some point before or during the medical malpractice litigation, you and your lawyer might make a demand for settlement upon the defendant(s) and its insurance carrier, often times consisting of a detailed written document with supporting medical records arguing the strengths of the case and weakness of the defendants defenses. This may result in further negotiation and the case being settled. Sometimes the settlement negotiations are informal between the lawyers and clients only; other times the parties will engage in formal settlement negotiations before a mediator or arbitrator in a settlement mediation or arbitration.
Step 7: Medical Malpractice Trial and Appeals
Not all medical malpractices case go to trial. Many are settled. Some are dismissed for one reason or another. But if a case is not dismissed and a settlement cannot be reached, a medical malpractice case will proceed to trial. Some medical malpractice trials can last days, others can last weeks. Most medical malpractice trials in Illinois are decided by a jury. If the jury or judge finds in favor of the plaintiff, it may award the plaintiff money damages. Once the trial is over and decided, either side may try to overturn or reverse the decision by filing a post-trial motion with the court or by filing an appeal with an appellate court.
If You Or A Loved One Have A Potential Medical Malpractice Lawsuit That You May Wish To Pursue, Contact A Chicago Medical Malpractice Lawyer.
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