The Process of Taking a Malpractice Case to Trial

The-Process-of-Taking-a-Malpractice-Case-to-TrialMedical malpractice litigation is one of the most costly and time-consuming types of litigation that goes through U.S. courts. Claims are much more complicated than they are with other forms of personal injury cases, and both sides will make as many attempts as possible at negotiating a settlement without having to resort to formal litigation before a judge and/or jury.

Medical malpractice litigation is one of the most costly and time-consuming types of litigation that goes through U.S. courts. Claims are much more complicated than they are with other forms of personal injury cases, and both sides will make as many attempts as possible at negotiating a settlement without having to resort to formal litigation before a judge and/or jury.

Initiating the Claim

After choosing an attorney, an informal consultation will occur regarding the case. The attorney will ask the plaintiff, who is the injured party, about the details of the case. The attorney will want to see that substantiation exists to meet all four requirements of a medical malpractice claim:

  1. A duty existed for the health practitioner or hospital to provide care for the plaintiff.
  2. The duty that existed to provide care did not meet accepted standards.
  3. The breach of duty caused or directly led to an injury.
  4. Damages occurred as a result of the injury.

If the attorney believes the plaintiff can make a case, he or she will initiate proceedings by filing a formal complaint with the court.

Discovery

After filing the complaint, a case number is issued and time is granted for the process of discovery. Discovery consists of the plaintiff’s attorney and the defendant’s attorney exchanging information, evidence and documentation that pertains to the case. At this time, attorneys for both parties will call upon medical experts who will testify in support of their respective side in the case.

Medical Expert Testimony

Medical experts are third-parties who will attempt to prove or disprove one or more of the four points required for medical malpractice to have occurred. If the medical experts for both sides agree with each other that one of the four points is not valid, the case will be dismissed. If they agree that all points, in fact, occurred, the case will be settled quickly.

Negotiations

Before going to court, negotiations are attempted. Negotiations may involve only the attorneys in a process called mediation, or they may go to arbitration, in which a third-party arbiter listens to both sides and helps in the formation of a settlement. This process can go back and forth several times over the course of months or years. If no settlement is reached, litigation continues in the courtroom.

In the Courtroom

If the case goes to the courtroom, a full trial will commence. Witnesses will be called for testimony to be heard by the judge and possibly by a jury. If the trial is going badly for one side or another, a settlement can still be reached before the conclusion of the case. If the case concludes, a judgment will be made for one side or the other by the judge or by the jury. If the judgment is for the plaintiff, an award for damages will subsequently be ordered.

The losing side has an option of filing an appeal. If an appeal is filed, the appellate court will make a new ruling or uphold the existing one.