Initiating the Lawsuit
Once the preliminary investigation and paperwork are completed, the real work of the lawsuit begins. Predicting how long a case will take can be difficult, but generally, most cases follow a set path directed by the Court.
Filing and Serving the Summons and Complaint
After the Summons and Complaint are filed in Court, they must be served on the Defendants. This process should be brief since the case investigation prior to filing should have identified all parties and their addresses. Once served, Defendants typically have 20 to 30 days to file and serve their Answer, depending on the method of service.
Defendants’ Answer and Initial Discovery Demands
The Defendants’ Answer is usually a general denial or a statement claiming insufficient information to validate the Complaint’s allegations. At this stage, Defendants will often serve their first set of discovery demands.
The Discovery Phase
Discovery is the most extensive phase, encompassing all activities from the start of the case to the trial. Both the Plaintiff and Defendants request documents from each other to build their respective cases.
Plaintiff’s Document Requests
During the investigation phase, Plaintiff’s attorneys typically request records from medical providers, but these records are often incomplete. In the discovery phase, Defendants must provide certified copies of their records to be used as evidence.
Defendants’ Document Requests
Defendants may request documents or records from the Plaintiff and seek authorizations to obtain medical records from other providers. Privacy laws prevent hospitals and doctors from releasing records without a signed authorization from the patient.
Concerns About Medical Record Access
Plaintiffs may feel uneasy about defense attorneys accessing their medical records, but by filing a lawsuit, they make their health history relevant. Courts generally require Plaintiffs to provide these authorizations to allow Defendants a fair defense.
Disputes Over Record Relevance
Defendants may request records that seem unrelated to the case. Courts often evaluate such disputes individually. For example, if a Plaintiff’s dermatologist visit might include notes on symptoms relevant to a brain cancer misdiagnosis case, the Court might allow access.
Depositions in Discovery
Once document requests are exchanged, depositions are scheduled.
- Plaintiff’s Deposition: Defense attorneys question the Plaintiff about their medical history, the alleged malpractice, and resulting damages.
- Defendants’ Depositions: The Plaintiff’s attorney questions the Defendants on their qualifications, treatment, and recollections.
This phase often spans 18 months to 2 years or longer if there are multiple Defendants. Courts hold periodic conferences to ensure discovery progresses smoothly.
Pre-Trial Conferences
After discovery is complete, the case is certified as ready for trial. The Court schedules pre-trial conferences, during which Defendants often decide whether to negotiate a settlement or proceed to trial.
Settlements vs. Trials in Medical Malpractice Cases
Medical malpractice cases rarely settle before the discovery phase ends, unlike motor vehicle accident cases. Physicians often need to consent to settlements, as malpractice insurance claims affect their premiums and career prospects.
In contrast, insurers in car accident cases can settle without the Defendant’s approval.
Trial Scheduling
If a trial is necessary, scheduling can take over a year due to judges’ busy calendars. Delays have worsened with the COVID-19 pandemic.
Timeline Overview
From filing to resolution, a lawsuit may take 3 to 4 years. Factors like the filing County, the number of witnesses, and the judge’s schedule can influence this timeline.
Tips for Expediting Your Case
- Quickly respond to discovery demands.
- Provide your attorney with thorough information.
- Avoid delays in signing authorizations or providing answers to discovery responses.
These steps can help move your case along more efficiently.