Anatomy of a Malpractice Case
When you or a loved one has been the victim of negligent healthcare (medical malpractice) your entire world has been turned upside down and the path ahead of you can often appear daunting and confusing. An attorney with extensive experience in medical malpractice cases can guide you through the complex and often lengthy process of obtaining the compensation you deserve.
There are roughly six sequential phases that a medical malpractice case goes through from the initial client interview until the case has been concluded. No two cases are identical. Some cases go through all six phases and some cases will only go through the first few phases. However, an experienced medical malpractice lawyer will approach every case as if it will go through all the phases and be thoroughly prepared to take your case to trial and beyond. Any attorney who does not have the ability or willingness to see your case through a trial has no business handling such cases.
In this series of blogs, I will take you through each of the phases of a medical malpractice case and explain what you should expect at each step. This is a broad explanation and naturally each case will have its own nuances and challenges. However, this will give you a clear idea of the journey you will take with your attorney toward achieving a just and fair outcome.
PHASE ONE – The Initial Interview
At the first meeting with the attorney, you will be interviewed extensively. You will be asked to explain all the events and circumstances surrounding your claim. This is often a painful but necessary part of initiating your claim. The attorney will ask you detailed questions about your health history and/or your loved one’s health history as well as your family’s health history. This is not unlike seeing a new healthcare provider for the first time. Your health history will include treatments for any mental health issues including any grief counseling or pastoral counseling you may have received.
You will also be asked extensively about both your personal and professional life. These questions can seem irrelevant and intrusive. However, when you bring a legal claim for medical injuries, your entire life history and not just your medical history needs to be known by the attorney. This is important because there are things in your past that may or may not become relevant to your legal claim. Even if they are irrelevant, the attorney still needs to know about them in advance to ensure that they are not inappropriately used by opposing counsel at trial.
This is why it is critical that you are completely honest and open with your attorney regardless of how embarrassed you may feel about certain aspects of your life. Anything you tell your attorney is completely confidential and cannot be revealed by the attorney without your permission, except in very rare circumstances.
Because of the stakes involved on both sides of these cases, physicians and hospitals are represented by some of the most skilled litigation attorneys and insured by deep-pocketed insurance companies that spare no expense in defending them. You must assume the other side will discover everything about you. Oftentimes, your attorney can prevent unfavorable things about you from being used against you at trial. Alternatively, your lawyer can mitigate the adverse evidence’s impact if it is allowed in at trial. However, if you withhold these things from your lawyer and it comes out as a surprise at trial, the results can be devastating to your claim – even if it had no relevance.
For example, you will be asked about any prior legal proceedings you have been involved in. This would include both civil matters and criminal matters. Civil cases could be a prior personal injury case, a worker’s compensation case, a divorce case, a contract case, or any other type of civil case. You should disclose all of these to the attorney regardless of whether a lawsuit was filed, whether it was dropped, and no matter what the outcome. You will be asked if you gave any testimony either in deposition or at trial.
You will be asked about any criminal matters you were involved in. You need to disclose all matters regardless of the outcome. You may have been charged with a crime but received probation before judgment or other deferred disposition. You may have had the matter expunged and think it is not accessible to anyone. That may or may not be the case, but you still need to disclose this to your attorney.
You will be asked about your educational history and any degrees or certificates you may have. You will be asked about your employment history and earnings history. This will include all your past employers and the reasons you left each job. The attorney may need to obtain tax returns, W-2s, 1099s, or other financial documents from you. You will sign documents that permit the attorney to obtain records on your behalf. You will be asked about any licenses you have or have had and what the status of those licenses are at the current time. If you work in a security sensitive position, you will be asked about any clearances you’ve been granted.
The attorney will also ask you about any health insurance you have and whether it is private, government, Medicare, or Medicaid. You will be asked about any disability payments you have received or are currently receiving.
The attorney will need a list of all the people and their contact information who may have any knowledge of your case including how it has affected you. You will be asked for any photos or videos that demonstrate your injuries and any photos or videos that preceded the injury. You will be asked for any diaries or journals you kept that may refer to any aspect of your case.
If the case involves the death of a loved one you will need to have an estate opened if one has not already been opened. The attorney will need to have copies of any estate paperwork and copies of any wills. The attorney will need to know of all immediate relatives of the deceased, especially the spouse, children, and parents along with their contact information. This is without regard to the status of the relationship.
If you have not already been asked by the attorney before the first meeting, you will be asked to gather all the records you have in your possession that the attorney needs for your case. You may be asked to prepare a list of witnesses, healthcare providers, employers, etc., and their contact information so the attorney can obtain any necessary documents or witness statements. You may also be asked to prepare a detailed written statement that reflects everything you can remember about your case. You will need to note on the document that it was prepared by you at your attorney’s request. This will protect it from having to be disclosed to the other parties.
Once the initial interview has been completed, the attorney will begin the next phase of your case.
PHASE TWO – The Investigation
After the initial interview, the attorney will begin the next phase of the case. If your case involves the death of a loved one, an estate will need to be opened if that has not been done already. The attorney can assist with this process. It is a necessary first step because you cannot get medical and other records for a loved one who has died without a personal representative being appointed by the court.
In any case, the next step will be to obtain all the relevant medical records. Depending on how extensive the medical care was and how many different provider records need to be obtained, this process can take several weeks or more. Once the records are received, reviewed, and analyzed by the attorney, they are sent to an expert(s) who has expertise in the field of medicine at issue. This step is crucial. You cannot maintain a claim for medical malpractice without a qualified expert who will testify that the healthcare was negligent, and that the negligence caused the injuries or death.
Depending on the case, this process may involve obtaining the opinions of several experts. Sometimes, the attorney will obtain a second opinion if the first opinion is not favorable. Once a favorable expert opinion is obtained, the lawsuit is prepared. During this time, the attorney also gathers all the information and records needed for the lawsuit such as medical bills, lost income documents such as W-2s, tax returns, employment records, and any additional medical records. Legal and medical research will also be done to strengthen the case and to become alert for potential weaknesses.
In many cases, the attorney will also have the client examined, tested, and/or questioned by one or more of the experts retained in the case. This can occur either before or after the lawsuit is filed. The purpose for this can vary and is dependent on the extent and types of claims being brought. The lawsuit is then filed with the appropriate court.
After the defendant healthcare provider answers the lawsuit and any preliminary legal matters have been resolved, the court will issue a scheduling order that sets forth all the deadlines in the case and, in some jurisdictions, a trial date. These deadlines are set forth over several months with the trial date set for about 12-18 months (about 1 and a half years) from the date the case was filed.
PHASE THREE – Discovery
The parties will then begin the process known as “discovery.” Discovery is where both sides make written requests of the other side to provide them with all the information they have regarding the claims being made and the defenses being asserted. For documents, the parties will send out “Requests for Production of Documents” that ask the other side to produce various documents the party believes they need regarding the case. “Interrogatories” are written questions a party sends to the other side for answering under oath. These questions are designed to obtain information about the parties and the claims and defenses they are asserting.
The attorneys will also request the depositions of the other parties. A deposition is where an attorney for one side is permitted to have a party or witness sit for questioning by the attorney while the party or witness is under oath and with a court reporter recording the proceedings. This is typically done in the respective attorneys’ offices but can be conducted anywhere that is agreed upon in advance. While the deposition is more informal than questioning conducted at trial, it is still testimony that is given under oath and can often be used to the same extent as if the testimony were given at trial.
The attorneys will also issue subpoenas to various individuals, businesses, healthcare providers, and other entities to obtain documents and other information they think will assist them in the case. The subpoenas can also request that individuals or representatives of various entities also sit for a deposition. The attorneys will typically take the depositions of any experts identified in the case. However, there are instances where an expert deposition is not requested either for strategic reasons or because it is not necessary.
During this period, you may also be requested to submit to an in-person examination by one or more of the other side’s experts. This is especially true if you were examined by an expert retained by your attorney. This is called an “Independent Medical Evaluation” or an IME. Despite its name, an IME is anything but “independent.” It is more appropriately thought of as a Defense Medical Evaluation and unfortunately it can be a source of potential abuse by the other side in an adversarial process. Your attorney will guide you through the process to ensure that your rights are protected.
The court will set a deadline in the scheduling order for all discovery to be completed. By then, both sides should know all relevant information about the claims and defenses and be prepared for trial. The discovery deadline is usually followed by other deadlines for legal matters that need to be decided before the trial and procedural issues relating to the trial itself.
PHASE FOUR – Alternative Dispute Resolution
There are two other matters typically found in the scheduling order. One is an order requiring the parties to participate in mediation. In mediation, the parties agree upon a neutral mediator who has experience with medical malpractice cases. Before mediation, the parties provide the mediator with confidential statements regarding the strengths and weaknesses of the case and their impression of the likely monetary value. At the mediation, the mediator meets with both parties and their attorneys together and then separately to try and bring both sides to a mutually agreeable conclusion.
Mediation can last anywhere from a couple of hours to all day or even multiple days. It is not unusual for a mediator to continue to work with the parties after the scheduled mediation if they believe a settlement can be reached.
Many cases are resolved at this point in the case. Both sides are fully aware of the strengths and weaknesses of their cases and experienced attorneys know that a jury trial presents a significant risk for an adverse outcome. Every lawyer knows that even the best cases can be lost at trial and the worst cases can be won. Mediation and settlement represent a compromise between the parties. It also represents a finality and certainty to the outcome.
If the case is not resolved at this stage, there is a pre-trial conference held about thirty days before trial. Sometimes a judge will make further attempts to settle the case but more often the court simply makes sure all the parties are ready for trial and resolves any outstanding procedural issues.
If the case has not been resolved by this point, then it is likely headed for trial.
PHASE FIVE – Trial
Malpractice trials typically last one to two weeks or more, depending on the complexity of the case. This is usually a jury trial. The first day of trial is jury selection and possibly opening statements from the attorneys. The jury is selected from a pool of potential jurors that are citizens of the jurisdiction the case is pending in. The jurors are asked a series of questions that the attorneys and the court have agreed to. Jurors are then questioned individually if they responded to any of the questions.
If any of the jurors respond to a question that indicates they cannot fairly judge the case, then the court may strike that juror for “cause.” In addition to these strikes, each side is permitted a set number of “strikes” that they can use to dismiss a juror without asking the court to do so.
From the remaining pool of jurors, the court typically selects the first six jurors plus any alternate jurors, and they will hear the case. Alternate jurors will only participate in deliberations if a regular juror needs to be replaced during the trial. Otherwise, they are dismissed at the end of the case.
The attorneys then give opening statements. The plaintiff (the person bringing the case, i.e., the injured party) goes first followed by the defendant’s lawyer. After the opening statements, the plaintiff then calls their witnesses and presents their case to the jury. The witnesses are first questioned by the party who called them and then the other side is allowed the opportunity to cross-examine them.
After the plaintiff has called all their witnesses and presented their evidence, the defendant calls their witnesses and presents their evidence. Occasionally, the plaintiff may introduce rebuttal witnesses following the defendant’s presentation. After all the witnesses have testified and all the evidence is in, the court instructs the jurors on the law and the lawyers give closing arguments. The plaintiff’s lawyer goes first, followed by the defendant’s lawyer, and then the plaintiff’s lawyer has the last argument to the jury.
The burden of proof is on the plaintiff. In most civil cases, the plaintiff must prove their case by a “preponderance of the evidence.” This is a much lower burden than a criminal case where the burden of proof is beyond a reasonable doubt. A preponderance standard simply means that the likelihood of something being correct is greater than 50%.
The jury then confidentially deliberates on your case and renders a verdict.
PHASE SIX – Post trial and Appeal
Following the jury verdict, the losing party can either accept the verdict, file an appeal, or make various post-trial motions asking the court to modify or change the verdict or request a new trial. These post-trial motions can take several months or more to be resolved. Depending on the outcome of the motions, it will either end the trial phase of the case, or a new trial will be scheduled. If a new trial is not granted, the losing party can then file an appeal.
The appeals process can take anywhere from one to two years to complete. Most appeals only involve alleged mistakes that were made during the trial of the case. It is the burden of the party appealing the case to show that a mistake was made, the mistake had a material effect on the verdict, and that the verdict should be reversed. The appeals court can affirm the verdict, reverse the verdict either in whole or in part, and/or order a new trial. In the event of a new trial, the entire trial process starts over.
As you can see, a medical malpractice case can take many years to reach a conclusion. An important job of a skilled medical malpractice attorney is to put together such a strong case that the defendants do not want to risk a trial and instead choose to offer the injured party a just and fair settlement. However, you want your attorney to be ready, willing, and able to present your case to a jury. Without that skill, the attorney is unlikely to obtain a good settlement and certainly unlikely to obtain a favorable jury verdict.
Matt Ballenger has been litigating medical malpractice and serious personal injury cases for over thirty years. He has obtained many multi-million-dollar verdicts and settlements and has handled several cases on appeal that resulted in published opinions.