Medical malpractice claims are complex legal claims that often involve traumatic personal stories and complicated medical and legal issues. Every claim is different, and one unique fact in a case can have a significant impact on the length of time it takes to resolve a claim, whether through a settlement or jury verdict. A simple medical malpractice claim might resolve in less than one year, while a complicated or high-value claim could last several years.
Our medical malpractice attorneys will work with you to uncover all of the relevant facts in your case, and advise you on what to expect in your particular situation. We are experienced in investigating and identifying what is important in a medical negligence claim before suit is filed, and, during litigation, our attorneys collaborate with expert witnesses, conduct further investigation (which is called “discovery”), and build a strong case using various litigation tools, so that you can achieve the best result possible. Carrying out these investigations and consulting with expert witnesses can take a long time, but it is necessary to get you the compensation that you deserve for your injuries.
If you would like to speak to a medical practice attorney about the timing or process of a medical practice claim, or if you have other questions about medical negligence, call us today at 302.655.2599 or contact us online to schedule a free consultation.
What can affect the timing of a medical malpractice claim?
There are many practical and legal factors that can affect the timing of a medical malpractice claim.
Statute of Limitations
The statute of limitations is the legal deadline for filing a lawsuit. Once the statute of limitations period has passed, it is almost impossible to file a lawsuit. The statute of limitations is set by state law, so the deadline can be different in every state, and you should get legal advice about the laws in your state.
In Delaware and Pennsylvania, victims of medical malpractice generally have 2 years to file a claim. In Maryland, victims of medical malpractice generally have 3 years to file a claim. However, the deadline may be longer (or shorter) in these (and other) states, depending on the specific factual circumstances of your case. For example, if you only recently found out about the injury or that it may have been caused by medical negligence, or if a minor child is involved, this may affect when the statute of limitations period expires.
Complexity of Medical Issues
Medical malpractice claims are inherently complex because medicine is a highly-skilled field that requires sophisticated medical knowledge. Expert witnesses, which are usually other medical providers in the same or similar specialty as the doctor whose care is at issue, must be brought in to analyze every step that was taken in the patient’s care, and to give their expert opinion on (1) whether or not the medical provider acted reasonably under the circumstances, and (2) whether unreasonable conduct caused the patient to suffer harm.
Even in cases where it is obvious that some wrongdoing has occurred, such as when a surgeon amputates the wrong limb, it is not always obvious which member of the medical team was at fault. Your attorneys may need to investigate the actions of each medical provider on your team, the safety procedures of the hospital, and the legal relationships between the physicians, nurses, clinics, and/or hospitals to determine who is legally responsible for your injury.
Number of Parties and Relationships Between Them
Anyone who has been to a clinic or hospital, or undergone a medical procedure, knows that many people are involved in patient care. These can include the nurse who checks your vitals, the phlebotomist who draws your blood, the lab technician and pathologist who review samples, the X-ray tech who takes your X-ray and the radiologist who reads it, the surgeon and anesthesiologist in the OR, the ICU doctors or hospitalists, and the nurses on the wards. Perhaps, you have also seen an emergency room doctor, an oncologist, or other specialist, or have been brought to the hospital by paramedics in an ambulance. Any one (or more) of these people may be responsible for the injury that you suffered as a result of medical malpractice, and it takes time to find out who was involved in your care, and where the fault occurred.
It is also necessary to find out the legal relationships between each of the parties to determine who to sue in your legal claim. Large health systems are made up of many different legal entities, and your attorney must find out which entities own the clinics, hospitals, or labs involved in your care, and which employ the providers who cared for you. In some cases, the doctor or nurse that treated you is not employed by the hospital at all, and also has a separate insurance provider. Your attorney needs time to find out as much as possible about these legal relationships before a lawsuit is filed, and to identify which parties should be involved in the claim.
In some cases, these relationships are only revealed through the discovery process after a legal claim is filed. Finding out who was involved in your care is made especially difficult because healthcare providers and their insurers typically do not disclose this information willingly. It can take legal action to force them to disclose this information in the discovery process.
Discovery is a stage in litigation that happens after you file your lawsuit. Each party is trying to “discover” all of the relevant information and evidence that the other side might have about the case. It can be a long-drawn out process of requesting information and documents from the other side, trying to overcome their objections to disclosing all of the information that they have, and then reviewing everything that they do disclose. There may also be thousands of pages of medical records, imaging reports, physician orders, prescriptions, admission and discharge paperwork, electronic communications like email, and other documents that must be obtained and reviewed. This is a time-consuming but essential process.
In addition, discovery is the time when the parties get to take depositions. This is typically when lawyers get to ask witnesses questions under oath about their knowledge of the issues in the case. Depending on the complexity of the case, there may only need to be a few depositions, but in other cases, parties may need to depose several individuals. This can, in certain cases, include deposing the parties’ expert witnesses. As with document discovery, parties may object to aspects of a deposition, or even the deposition itself, and it may take time to allow the court to make a ruling on those issues. The lawyers involved in the case can assess who needs to be deposed and how long the process generally takes, and they can plan accordingly.
Although many medical malpractice claims settle before they go to trial, they often do not settle until some or all of the discovery process has happened. That is when the parties really begin to understand how strong your case is and how a jury may evaluate the strengths and weaknesses of each side’s case.
Scheduling Conflicts and Uncontrollable Delays
In addition to the discovery process, a lawsuit typically involves settlement negotiation meetings and discussions, pre-trial hearings, and other legal filings before the trial itself. When there are numerous parties involved in a claim, scheduling can be difficult because each party and their respective insurers and attorneys have the right to participate in certain events, and everyone must be available on the same date and time. Because these cases can last multiple years, it is also likely that during the life of the case, scheduling delays may occur as a result of unpredictable illnesses or personal issues. Our attorneys work as efficiently as possible for our clients so that any such delays are minimized or avoided.
What are the stages of a typical medical malpractice claim?
Even though the timeline of a medical malpractice claim can be unpredictable, the stages of these claims are generally similar.
Initial Attorney Consultation
When you first think you or your loved one may be the victim of medical malpractice, contact a lawyer as soon as possible to ensure that you do not miss the deadline for bringing a legal claim. Most lawyers will offer you a free first consultation to find out more about your case and to allow you to find out more about them. Based on these conversations and your own research, you can choose a medical malpractice lawyer to handle your case. Find out more about choosing a medical malpractice lawyer here.
After you have engaged an attorney, the attorney will begin investigating your case in detail, including interviewing you, reviewing medical records, and obtaining other evidence about your case. Every case is different, and some cases can be evaluated quickly while others may take much longer depending on the complexity of the case, the number of medical records involved, the number of experts needed, and other factors. If your attorney believes the evidence supports a claim for medical malpractice, the attorney will then have the case reviewed by a medical expert. Only a medical expert can give an opinion that medical malpractice has in fact occurred.
File and Serve the Complaint
Once your attorney has the necessary expert support and paperwork needed to pursue a case, the attorney will file your complaint in the relevant court or government agency, and it will be served on the defendants (which means they are given a copy). At this point, you have officially made a claim against the parties named in the complaint. If you discover that some parties need to be added to, or taken off, the complaint, the attorney can evaluate that issue, and it is usually possible to do that at a later date.
In some rare cases, one or all of the defendants or their insurers may make a settlement offer when, or shortly after, the complaint is filed. You do not have to accept this offer. Your attorney will discuss any settlement offers with you and advise you on your next steps. Typically, the first offer in any lawsuit is much lower than the expected compensation. Settlement negotiations can continue throughout the case, alongside the legal process.
As discussed above, during discovery, each party is required to disclose relevant evidence to the other parties which could include medical records, medical history, employment records, and other relevant information. There may also be witness depositions and physical evaluations.
Your attorney will hire expert witnesses to review your case and to provide an opinion to the court. These are crucial in a medical malpractice case, and it is important to have an attorney who can bring in reputable expert witnesses.
After a lawsuit is filed, it can take at least a year, often longer, to get to trial. Most medical malpractice cases will settle before trial, and some settle during trial. If the defendants refuse to settle, or if they refuse to offer reasonable compensation, your attorneys will need to bring the case to trial so that a jury can assess the reasonable compensation owed to you.
If a medical malpractice claim does go to trial, your attorney will present the evidence in your case to the jury, and the defendants’ attorneys will present their side. Expert witnesses and other witnesses may be called to testify. The jury will ultimately decide your case and the amount of your compensation.
A medical malpractice case can take a long time, but it is necessary to reveal the full truth of the negligent treatment that you endured. Our attorneys will be by your side, and communicate with you, every step of the way. They will fight to get you the compensation you deserve, and they will not hesitate to try your case so that a jury can award what a defendant may be unwilling to pay.
At Morris James, our attorneys have been protecting our clients’ rights since we opened our doors in 1932. If you have questions about medical malpractice, you may find answers in our Medical Malpractice FAQs, or you can contact us online or call us at 302.655.2599 to learn more.