Medical malpractice lawsuits, which are customarily impacted by the backlog in the court system, are likely to be set back even further by the temporary closing of courts during the COVID-19 lockdown. Experienced medical malpractice lawyers will tell you that a case that goes to court will take years to make its way through the court system, and/or for any settlements to be paid. Most medical malpractice lawsuits are settled out of court, but attorneys on both sides are required to file motions and utilize the court process in other ways.
For all these reasons, personal injury lawyers carefully weigh the pros and cons of a court trial when representing a medical malpractice plaintiff. Often the individual and his or her family are in need of the settlement funds, but the attorney must ensure that the settlement offered out of court is fair to the plaintiff.
The process of a medical malpractice lawsuit includes at least four important steps.
The discovery phase is triggered when your attorney files a medical malpractice complaint, and all involved sides are informed of the lawsuit. Each side of the medical malpractice lawsuit will request from the other:
During this phase, both sides are building their case, should it go to trial.
2. Expert witnesses
Your attorney and opposing counsel each will call upon a medical expert to investigate the facts of the case, assess them against the accepted medical standard of care, and advise the attorneys on whether medical negligence has occurred. The medical experts are also required to determine if and how the negligence may have caused additional, undue injuries to the plaintiff (you).
It is possible these medical experts might both find that the health care provider met the medical standard of care and negligence had not occurred. The lawsuit then would likely be dropped.
However, if either expert finds the standard of care was not met and negligence occurred, more experts may be called upon. If the experts agree that negligence probably did occur, the medical malpractice lawsuit will proceed.
3. Settlement negotiation
The defense is likely to try to settle the case out of court, as 90% of medical malpractice cases are settled out of court. Going to trial is time-consuming and costly, and defense counsel will try to avoid it by making settlement offers. You can expect the initial settlement offer to be below the amount that your attorney might counsel you to accept. This is a delicate process, and one you should place in the hands of an attorney who is experienced in negotiation. If your attorney does not feel a fair settlement is offered, then your attorney is likely to take the case to court.
4.Payment of settlement
When a settlement is reached, or the court has ordered the defense to pay you, two types of payments may occur:
- A structured payment, often awarded to birth injuries or malpractice against children, as the funds must last over a lifetime of medical care and support.
- A lump sum payment, which is the total settlement. The plaintiff is advised to seek the advice of a family estate planning attorney to ensure the funds are managed well in terms of tax obligation and investment planning.
If you believe you have been injured due to medical malpractice, do not delay contacting an experienced medical malpractice law firm. There are statutes of limitation on these cases which vary from state to state. Contact at Perna & Abracht, LLC attorneys today to get expert advice on your situation.