“How long will a medical malpractice lawsuit take?” We get asked this question often. The answer, regardless of where you live, is two to four years. There are two main reasons for this:
First, doctors and hospitals are never in a rush to move the suit along. Some of this foot-dragging is done strategically to harm the plaintiff’s case. Defense lawyers and their clients know that memories lag, that key witnesses die or move away, and that the plaintiff may get worn out by the process and quit or take short money the longer a lawsuit takes to resolve. In fairness, some delay by the defense is innocent and a product of overworked defense lawyers with little time to do more than deal with the most pressing matters only.
The term short money means taking a settlement that is substantially less than the case is worth.
On the defense lawyer side of things, there is tremendous competitive pressure to acquire and retain defense business. Most defense firms never say no to a new case even when their workload is full. The defense firms know that there are many, many lawyers out there happy to snap up any case they turn away. By taking on every case they’re offered, however, defense firms become responsible for more work than they can handle, and the only way to get that work done is to delay doing it.
The second reason medical malpractice cases take so long is the rules a lawyer must follow to file a medical malpractice lawsuit. Here are the parts of a lawsuit as it has to be filed in Illinois:
- The Letter of Merit
- The Filing and Service of the Complaint, then the Answer
- Pre-Trial Discovery
The Letter of Merit
To prevent frivolous lawsuits (lawsuits that have no merit) state legislatures around the country passed laws to prevent plaintiffs from filing medical malpractice lawsuits until they first get a letter from a medical doctor. The doctor must review the medical records related to the case to determine that the lawsuit has merit and is not frivolous.
A plaintiff is the person who was injured by and sues the medical provider. A defendant is the person or hospital that gets sued.
So, before we can file a lawsuit in Illinois, our firm must first get a letter of certification from a doctor who, after reviewing the medical records and case material, certifies that the lawsuit has merit. This step costs time and money and is, therefore, a case expense. This part is easier for law firms with extensive experience in handling medical cases. Because they’ve handled medical malpractice cases for so many years, they generally know long before they send the case out for certification whether it has merit.
The Filing and Service of the Complaint, then the Answer
With the letter in hand, the next step is to draft, file and serve the complaint. Like its name implies, a complaint is a document in which the “complaints” against the doctor, nurse, or hospital are written down and given to the defendants. In other words, the complaint contains a list of the rules which were broken by the defendants and the resulting injury.
After the complaint is drafted it gets filed with the court and then a copy must be given to each defendant. The technical name for giving a copy of the complaint to the defendants is service. The lawsuit starts when the plaintiff files the complaint and gives a copy to the defendants.
Once the defendant gets a copy of the complaint (or is served) he gets to “answer” it, which means he can admit that he broke the rules the way plaintiff says he did, or he can deny that he broke the rules. Invariably the defendant will deny the rules were broken.
After each defendant answers the complaint, the case moves into the most time-consuming stage of every lawsuit—the pre-trial discovery stage.
Pre-trial discovery is when each side asks the other side for the information it needs to prove its case at trial. For example, the plaintiff might ask for additional medical records, hospital policies, and procedures, background information on the defendant doctor, or details about what the doctor was thinking when he provided care. On the other hand, the defendants might ask the plaintiff to produce all of his past medical records (to try and show that the plaintiff always had the injury and thus the defendants didn’t cause it). Other things the defense might ask for would include details about what the doctor said or personal documents such as calendars and diaries.
There are several different ways lawyers get the information they need for the trial. Some of these discovery tools are arcane and apply only in weird cases involving wills or real estate. In medical cases, there are three primary ways of getting information: written questions (called interrogatories), requests to produce material, and depositions.
Types of Pre-Trial Discovery
- Interrogatories – Written questions sent from the plaintiff’s lawyer to the defendant’s lawyer (and vice versa) such as: “State the name and last known address of every nurse who worked on 12/25/2010.”
- Requests to Produce – Requests to get relevant documents and materials needed by either side from the other such as producing all of the photographs taken of the plaintiff or his family.
- Depositions – This is live testimony given under oath before a trial takes place. The lawyers on both sides of a lawsuit get to ask the plaintiff, the defendant, and various witnesses any questions they need to with a court reporter present.
In most states, the discovery process in a medical case has three stages. In the first stage, most of the questions are directed to the parties only – the plaintiffs and the defendants. During the second stage the parties will ask questions of all non-party witnesses, such as your family (who may know what happened, or know how the injury has impacted your life), your treating doctors (who know details about your injuries) or other non-party witness (nurses, clerks or anyone who has information about your case). The last stage is the expert stage. It is at this stage where the parties hire experts to testify in support of their case. If an emergency department nurse is being sued, for example, then both sides will hire an emergency department nurse to testify in support of their case. In fact, with few exceptions, if the plaintiff doesn’t hire an expert she will lose her case without ever getting a single day in court. This is because the law requires an expert to explain the rules of medicine and how they were broken.
Each of these steps takes time, especially once the pre-trial discovery begins. The lawyers on both sides of the suit will make sure they are only giving up the information the opposing side needs. They may need to challenge a request by asking a judge to rule on whether the information being asked for is really something the other side needs or should have access to. Both sides will take time to prepare for depositions so they can ask the questions they need to make their case. Interviewing and hiring experts is also a process that takes time to get right. Good lawyers will take the time they need to make sure they get each of the steps done right.
While it is possible for the defendant to settle at any point in the process, the plaintiff (the victim) should always plan on 2-4 years for their case to make it to trial.