This is usually a question I get at some point from every client. Some people ask the question in the first meeting, or even during our first phone call. Some don’t ask the question until we are well into the process. But at some point, everyone wants to know, just how long is this going to take? The simple answer, is we usually don’t know. A lot is dependent upon scheduling matters with the court and all the attorneys involved and in some cases that is easier than in others. But he process follows the same general course:
INVESTIGATION: An experienced medical malpractice attorney will engage in extensive investigation of your claim before the case is ever filed. This will include obtaining all relevant medical records concerning the alleged negligent medical care as well as relevant medical records before the incident to establish the patient’s medical condition before the negligent care. It is vitally important that you provide your lawyer with a complete list of all medical care providers: doctors, hospitals, therapists, home health care, etc. These records form the basis on which any successful case is built. Your attorney will first review the medical records, in depth. If he feels that you may have a viable case, he will then have those records reviewed by appropriate specialists in appropriate fields. This step is vital. Both Missouri and Illinois require that the attorney file an affidavit that the case has been reviewed by a qualified physician who has given the opinion that the medical care rendered did not meet the standard of care. Without an appropriate affidavit, the case will be dismissed. Therefore, an expert’s opinion is a requirement for the case to proceed.
FILING: The actual lawsuit is started by your lawyer filing a Petition or Complaint in an appropriate court with jurisdiction. The Petition or Complaint is usually accompanied by an sworn statement confirming that a qualified physician has reviewed the case and has found that negligence has occurred.
Once the case is filed, Summons, or an order to answer, will issue to the various defendants. This is the official notice of the suit that is served on the defendants. In response, the defendant will usually notify his or her insurer who will retain an attorney who will file an Entry of Appearance and an Answer or other responsive pleading.
DISCOVERY: Once preliminary motions and filings are complete, the parties engage in “discovery.” Discovery is the fact-finding process by which attorneys for plaintiffs and defendants formally investigate the claims and defenses of the case. This will include written discovery, such as interrogatories (written questions), requests to produce documents and/or things, and requests to admit certain facts. The various parties must answer all these forms of written discovery under oath. Discovery also includes depositions. Depositions are formal proceedings in which parties and/or witnesses are sworn under oath and the attorneys involved in the case are given an opportunity to question the witness. These proceedings are always recorded by a court reporter that will prepare a written transcript of the questions and answers. This transcript can be used at trial in different ways depending upon the particular state rules. In every court, the transcript can be used to “impeach” a witness if he or she gives a different answer at trial than in their deposition. In some jurisdictions, like Missouri, the transcript can be read into evidence. If the deposition has been video recorded, the deposition can be played for the jury as evidence.
MEDIATION: Either by court order, or by agreement, the parties may agree to mediate the case at some point before trial. Mediation is an informal process where both sides meet with a mediator, a neutral person, usually an attorney. The mediator works with the parties to try to reach an out-of-court settlement. If successful, the case ends at this stage. Of course, the parties can agree to a settlement without the need for mediation, although in medical malpractice cases, mediation is a common means of resolving meritorious cases.
TRIAL: If the parties cannot agree to a settlement, the case will be tried, usually to a jury. The number of jurors, 6, 9 or 12, depends upon the jurisdiction. In some jurisdictions when 12 jurors are used, the decision does not have to be unanimous; instead, 9 jurors must agree on the verdict. The jury’s job is to decide issues of fact. The judge’s role is to make legal rulings. The trial will proceed through the steps of jury selection, opening statement, plaintiff’s case, defendant’s case, rebuttal, closing arguments, jury instruction and jury deliberations. Once the jury reaches a verdict, the judge will, in most cases, enter that verdict as a judgment. Either party may file post-trial motions challenging the verdict. Once the judge has ruled on these motions, the judgment is final. Once the judgment is final, either party may appeal the decision for any one of numerous reasons. However, most successful appeals are based upon assertions that the judge has made an error in a legal ruling, not simply that the jury’s decision was wrong.
The entire process, from beginning to end, can take several years and cost thousands of dollars. Because of this, an experienced lawyer will carefully screen cases, proceeding only on cases that he believes are supported by the facts and the law.