Until you have been involved in a medical negligence suit, you probably will not appreciate how time consuming, expensive, and difficult they usually are. This article is intended only as the most general overview of what these suits entail.
First of all, one must have suffered significant harm (either a direct measurable harm or, in many states, an increased risk of harm or a loss of chance of recovery) as a result of substandard medical care. A claim of provable negligence or carelessness without harm or harm without a negligent cause both will lead nowhere. Further, even with negligence and related harm, in light of the expense and risk inherent in these suits, the damages must be substantial. No attorney will willingly risk $50,000 or more in advanced costs, a fairly typical investment in mostly expert fees and deposition expenses, and perhaps hundreds of work hours, if the predicted recovery will not be sufficient to carry these costs and fairly compensate the injured client. An attorney with experience in this field, before committing to litigate, will broadly and deeply investigate the claim and damages with the assistance of medical experts. To do less is to do a disservice to the client by getting him or her involved in a suit with little chance of success and exposing the client to what for many is an emotional roller coaster ride.
Commencement of suit
Once that threshold is met, suit is commenced with the papers mandated by the jurisdiction in which it is brought. In many, if not most, locations the plaintiff is required early in the life of the litigation to file of record some sort of documentation attesting that the matter has been reviewed by competent physician expert(s) who believes that based upon the information available, there was negligence which caused harm. The failure to file this document, where required, may lead to the suit being thrown out of court. While this device may eliminate many of the suits that defendants label “frivolous,” it also makes it incredibly difficult to pursue claims based upon faulty or absent hospital policies or oversight when the documentation needed to prove such claims, and support the certificate of merit, cannot be obtained in advance of suit so that a certificate may be filed. Such matters usually will not be revealed in the patient’s medical records, typically the only documents a patient can obtain pre-suit.
Next in the “pleading” stage is the defendant’s response to the complaint. Depending upon the jurisdiction, the defendant might be able to attack the complaint on legal grounds such as not being sufficiently factually specific, improper form, or even that the allegations, even if true, fail to make out a recognized claim of malpractice. Alternatively, the defendant may directly answer the complaint with direct responses to what plaintiff has alleged and further, stating affirmative defenses (like, for instance, someone else, or even plaintiff, was responsible for the harm alleged, or too much time has passed since the occurrence in violation of the statute of limitations), The plaintiff, or course, may then reply to the affirmative defenses stated by the defendant. In some situations, the defendant, when blaming another party not yet involved in the lawsuit, will join new parties who then have the right to file pleadings such as an answer. The pleadings set limits on the theories of liability that may be asserted at trial, and the theories of defense which may be used.
In Part II, we will discuss discovery and trial.
Keep in mind this is a very general overview. Each jurisdiction has its own body of court rules dictating procedures, and its own body of statutes and court decisions controlling the substance of medical malpractice law. Because of this, what is permissible procedure in one state may not be in another. What is good law some places may not apply elsewhere. Some states put a cap on pain and suffering damages and others do not. Some states recognize certain liability theories that others do not. Because of this, it is most important that parties be represented only by attorneys with experience in this field of law in the locale in which it is to be tried.
About the author: Philadelphia medical malpractice attorneys Judy Greenwood & Stephen Ulan have represented victims of medical negligence and catastrophic injuries for 25 years. Their office is located at 1800 JFK Blvd., Suite 1500A, Phila., PA 19103, http://www.greenwoodlawoffice.com, email [email protected].
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