Although medical malpractice is relatively common, the majority of people go their whole lives without needing to file a lawsuit against a negligent medical provider. Thus, if you’re like most people, you’ve never been involved in a medical malpractice lawsuit. Understandably, the thought of pursuing a medical malpractice claim can be intimidating. The steps below outline the various stages of a medical malpractice lawsuit, from the initial consultation with an attorney all the way through the final resolution of the case.
Scheduling a Free Consultation with a Medical Malpractice Lawyer
Not every medical procedure goes as planned. Yet, not every unfavorable outcome serves as the basis for a medical malpractice lawsuit. Thus, if you’ve been injured or suffered worsening injuries after receiving medical care, it may be hard to determine if your injuries were due to a healthcare provider’s negligence. Scheduling a free consultation with a medical malpractice lawyer is the first step on the road to recovery. An attorney will listen to the facts of your case and provide you with a professional and honest assessment of your case. This will give you a better idea of what your rights are and how to effectively pursue the compensation you need and deserve.
Finding the Right Lawyer
When you are looking for a medical malpractice attorney, don’t make the mistake of meeting with just one lawyer or law firm. Having the right medical malpractice lawyer can make the difference between winning and losing your case. When interviewing an attorney, as them about their experience handling cases similar to yours. You should also ask about the lawyer’s track record. While previous results are no guarantee of future performance, it will give you a good idea about their level of skill and comfort in handling these complex cases. Finally, make sure that you get along well with the lawyer. Medical malpractice cases often take months—or even longer—to resolve, so it is important to have a good relationship with your attorney.
Hiring a Medical Malpractice Lawyer and Understanding How They Are Paid
Once you find an attorney you believe in, the next step is to understand how they are compensated. Unlike many other types of lawyers, medical malpractice attorneys typically accept cases on a contingency basis. This means that the lawyer will not ask you to pay any legal fees upfront. Instead, you will sign an agreement that, if your case is successful, you will pay the attorney a percentage of the damages award you receive. If the attorney is not able to recover compensation in your case, you will not be responsible for any legal fees. In some cases, lawyers will also advance other costs associated with the litigation process, including filing fees, deposition fees, expert fees and more. It is important that you completely understand how your medical malpractice lawyer is compensated before agreeing to let them represent you.
The Attorney Investigates Your Case
After you sign a representation agreement, the attorney will then conduct an in-depth investigation into the case. While every medical malpractice lawsuit is different, this typically entails reviewing all your medical records from before and after the incident. This not only gives your attorney a better idea about the likelihood of success but also provides them with the information necessary to estimate the appropriate amount of damages in your case.
Your Attorney Obtains a Certificate of Merit
Illinois, like most other states, requires all patients to obtain and present a certificate of merit when filing a medical malpractice lawsuit. A certificate of merit is essentially an affidavit signed by a licensed medical professional who practices in the same area, explaining that, in their option, the defendant’s healthcare provider’s actions fell below the generally accepted standard of care. In other words, the expert’s affidavit states that the patient’s case has merit. Expert identification and selection is a critical component of a medical malpractice lawsuit, as these cases often come down to a “battle of the experts,” where each side presents competing expert testimony, and the jury is tasked with determining which expert’s opinion is more compelling.
Negotiation with the Insurance Company
Typically, before your attorney files a medical malpractice lawsuit, they will first engage in negotiations with the defendant doctor’s insurance company to see if it is willing to offer a fair settlement offer. Settlement negotiations are an important part of the process. During settlement negotiations, your attorney will explain to the insurance company what they believe your case is worth, and the insurance company will do the same. Often, the insurance company may have overlooked a key element of your case, and your attorney may be able to get the insurance company to increase the original settlement offer significantly. Your attorney will provide you with their opinion about the insurance company’s offer, but it is ultimately your decision whether to accept or reject the offer.
Filing a Medical Malpractice Lawsuit
If the insurance company is unwilling to extend a fair settlement offer, your attorney will then prepare and file a complaint. A complaint is a formal document that initiates a lawsuit. Once your attorney files a complaint, the defendant or defendants then file a response. From there, the case enters the discovery phase, where your attorney and the lawyer from the other side exchange information that may be relevant at trial. You will likely be deposed, meaning you must sit down and answer questions under oath. Your attorney will also depose other witnesses, including the treating physicians. The discovery phase is a critical part of the process, as it often exposes additional facts that can make your case easier—or harder—to prove.
Before a case goes to a trial in front of a jury, it is likely that it will first go to mediation. Mediation is a form of alternative dispute resolution that either party can request at any time. It involves both parties, their attorneys and a neutral mediator. The mediator acts like a referee between the parties, trying to help them come to a resolution. During mediation, both sides present their case, and the mediator proposes a resolution. Mediations are non-binding, meaning that the parties can accept or reject the offer.
Going to Trial
If a case cannot be resolved through a pre-trial settlement or mediation, the final step is for the case to go to trial. During the trial, each side will present its case. Any witness who testifies is subject to cross-examination by the other side’s attorney. This is critical, as your attorney may be able to expose weaknesses in witnesses’ or experts’ testimony. At the same time, it is important to work closely with your attorney to avoid the common pitfalls associated with testifying. Your attorney will also present evidence relating to the damages you suffered as a result of the defendant’s actions.
Even once a jury returns a verdict, that doesn’t always mark the end of the case. Either party can appeal any legal decision made by a judge during the trial. Thus, if you win a medical malpractice case but the defendant appeals, you may not receive the damages award until the resolution of the appeal. On the other hand, if the jury found in favor of the defendant, your attorney may be able to identify appealable issues that could result in a new trial.
Medical malpractice cases are very complicated and should be handled by attorneys who have specific, hands-on experience litigating similar claims. Remember, you have only one chance to file a medical malpractice lawsuit, and having the right attorney on your side can mean the difference between winning and losing your case.