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DO I NEED AN ATTORNEY FOR MY CASE?
November 2023
With all the information and tutorials that are available online, more people are willing to research and dive into a project and go the "DIY" route. For some projects that are straightforward, like changing your car's oil or fixing a clogged drain, the information and video tutorials you can find online can help even the most novice user accomplish their job effectively.
For legal issues, there may be a place for the DIY mindset. Certain types of documents, such as a health care proxy, are widely available as samples online, and it may be possible to create an effective document for yourself with a little research.
It can also be technically possible to do that with a personal injury or medical malpractice case. Although each case is fact specific, there are certain rules and procedures that every case must follow.
For a medical malpractice case, the first thing a DIY client must do is to determine if the case has merit and is worth pursuing. The deadline to file a case is also important to note, as a Court may dismiss a lawsuit that is filed too late. Normally, you have 30 months from the time of the malpractice to start the lawsuit. If you are suing a governmental entity, such as a publicly owned hospital, that timeline is shortened drastically, and certain steps must be done before a lawsuit can be filed.
Assuming you have enough time to file a lawsuit, you must get confirmation that you have a viable malpractice claim. That is done by obtaining the relevant medical records and then hiring a medical expert to review those records and offer an opinion that:
1) the medical care that was received was below the accepted standards of care, and 2) that the injuries that were sustained were a result of the substandard care. This expert opinion is necessary not only to avoid wasting time and money on a non-viable case, but the Court requires that a medical professional be consulted, and a positive opinion must be obtained.
Next, after determining you have a good malpractice claim, you must figure out the appropriate people and facilities to sue. Your expert can help you by pointing out which doctors or medical professionals gave sub-standard care, and which hospital or medical facilities would be responsible for that care.
The first document that you must draft when starting a medical malpractice case against a non-public medical facility or private medical professional is the Summons and Complaint. This document notifies the Defendants (the medical facilities and doctors/other medical professionals) of the date, location and some details about the malpractice that is being claimed, as well as the fact that the malpractice resulted in injuries being sustained. This document is first filed with the Court, which will assign an Index Number, which is the unique identification used by the Court system to track your case.
The Summons and Complaint must be served on the Defendants, either personally, or in compliance with the rules governing service of a corporation or hospital. There are companies that specialize is service of process, which is what the industry calls serving papers on people and companies, and those companies will ensure that all the rules are followed and that no one can question whether they were served properly.
Once the papers are served, the lawsuit is officially started. The first phase is called Discovery. During this phase, all necessary documents and medical records are exchanged. A DIY plaintiff will have to file certain documents with the Court, including a Notice of Medical Malpractice and a Bill of Particulars after the Defendants have answered the Complaint.
A plaintiff will also request a conference with the Court so that depositions and other discovery can be scheduled. Depositions of the Plaintiff and all named Defendants are done in the order that they appear in the caption of the Complaint. The depositions are done to obtain information, to clarify treatment and to evaluate the witness to determine if they make a good witness or poor witness. Valuable information can be obtained during a deposition that may be the difference between defeating a motion to dismiss and obtaining a large settlement offer.
Once all discovery and depositions are complete, which usually takes many months and even years to complete, depending on the complexity of the case and number of witnesses, the Court will require notification that the parties are ready to proceed with trial. At this time in a medical malpractice action, settlement discussions may take place. Defendants usually do not discuss realistic settlement offers before discovery is complete, unlike in a motor vehicle accident.
One reason is that the doctors that are involved in malpractice cases have reporting requirements of each time they are sued, and settlements or jury verdicts against them may affect their status in a negative way, and for this reason, many malpractice policies require consent from their insured doctor to settle a case. For an automobile accident, the insurance carrier generally does not need consent from their insured driver to discuss or settle a case.
If settlement cannot be reached, then a trial date is scheduled. At this point, the DIY Plaintiff must then schedule a time to select a jury, get assigned to a judge, and then fight the Defendant hospital and/or doctors' attorneys in open court. There are specific rules about how records and testimony gets accepted into Court so that the jury can consider them as evidence.
A DIY Plaintiff may be able to do some research, get some sample documents and even get some transcripts of depositions or trials from other cases. However, each medical malpractice case is unique, with unique medical treatment and a unique course of healing and post-treatment prognosis.
It may be technically possible for the DIY-er to successfully pursue a medical malpractice case, but there are many pitfalls and stumbling blocks along the way. Deadlines missed, rules not followed, and protocols violated may all doom a case before the chance to successfully resolve it for a Plaintiff.
The most important aspect of a medical malpractice lawsuit is to prepare and gather all evidence, in admissible form, so that the Defendants are put under pressure, and know that the case against them is strong. Only when they feel that pressure and fear of what a potential jury might rule do they consider offering a settlement to resolve a lawsuit.
Even in the face of that evidence, there are plenty of Defendants that will want to fight the lawsuit to the very end, because they feel that they did no wrong. Evaluating a medical malpractice case is not exactly a science, and different medical experts can have different medical opinions based upon the same records and facts.
For this reason, I would not recommend that a victim of medical malpractice attempt to pursue their own lawsuit. The defense attorneys are very skilled and experienced and know each way to weaken and defeat even well-founded malpractice claims. To add on the inexperience and general lack of knowledge about the process only serves to make the defense attorneys' job even easier.
At my office, I am in your corner against those defense attorneys and insurance companies that represent the Defendant doctors and hospitals. They have vast resources to obtain every medical record, every legal document and an army of medical experts willing to testify that all their medical treatment was according to the good and accepted standards and that nothing the Defendants did was the cause of any harm to you. To pursue a successful claim of malpractice, in my opinion, you will need a lot more than a YouTube tutorial and a few sample documents. Call my office and we can schedule a strategy session to determine the best course of action in your pursuit of justice and your rightful compensation.
McCann Legal, PC
We give injured people a chance to tell their stories to insurance companies and juries so they can get paid the money they are owed.