What to know about Bringing a Medical Malpractice Case
When a client calls me and they are consulting me about possibly bringing a medical malpractice case, it’s a fairly reasonable assumption for me to make that they haven’t had to do this before. I hope that’s the case, because to be a victim of medical malpractice is really a terrible thing. If they’ve never done it before, and they’ve never been part of a lawsuit before, they don’t have any idea of the legal process is or what it’s like. They usually have a lot of questions and would like to know beginning to end.
The first thing they need to know is that the client and my firm and I, we’re going to be a team. This is a contentious process that we will be engaging in. Things may come up that are going to be tough to deal with. Whether it be their emotions over what’s happened to them or it be some of the things they don’t understand the defendant may be saying about them. Either way, the client needs to know that they have my full and complete support, and that we will be working together as a team. The first thing we do, as a team, is get the facts, and that means an intake statement. An intake statement at my firm might resemble the kind of intake statement you gave when you go to a doctor’s office for the first time.
Even people who have never been to a law firm before have been to a doctor’s office where the doctor asks them for their family history, their medical history, and everything about that person’s medical background that brings them to their office on that day. Well, it’s no different when you come to my office. You will be asked the same kinds of questions, because if you are bringing a medical malpractice case, then your entire medical background will be relevant, and so we will ask you to bring certain kind of things in setting up the appointment.
In addition, when you come to my office and you meet with me, you will almost certainly be meeting the doctor who is on staff in my office, Dr Shaji Nair. We are very lucky to have a family practice physician who works with us, and the family practice specialty is particularly apt for a law office such as mine because they are generalists. And so, if you have to have one doctor who is going to be in your office and on your staff, a family practice doctor is the perfect one to have because he’s used to communicating with various kinds of specialists, whether it be oncologists, or surgeons.
Doctor Nair and I conduct the intake statement. We then review the facts that have been obtained and make a decision about whether your case is a case that we can help you with. If it is a case that we can help you with, we go on to the next step, which is to obtain all the medical records that are relevant to your case. That can take a little time, the client may or may not be asked to help and participate in getting those records. There are strategy reasons for that, which I’ll talk to you about, if I should be so lucky as to have you call me and you come to my office.
In any event, once the records are obtained, Dr Nair and I pore over those records and try to see what was going on with you at time you saw this doctor. Does it appear that there are any departures there? Can we show that these departures caused you an injury, which is the reason why you came to my office? Nobody comes because they’re dancing, they’re all coming because something terrible has happened and that something caused them to have a complaint.
After our investigation, if we’ve determined that you have a case I will probably ask an expert for a small opinion. New York law requires that before I commence a lawsuit, because New York doesn’t want to have frivolous lawsuits, I have to consult with a physician. I could just use my consult with Dr Nair, but usually what I would do is end up speaking with another physician, who’s the kind of specialist involved in your case, to get an opinion and an endorsement of the fact that this case has merit. Once it’s determined that your case has merit, the lawsuit’s going to begin.
Back in the old days, when we were under England, when lawyers filed a complaint or wrote a complaint, it was written in longhand – beautiful penmanship by the way – and was extremely intricate and complicated in the way that lawyers had to prepare their documents. And in fact, complaints could be thrown out if they weren’t worded just so. These days, under modern practice, that’s not the case anymore. Complaints are very, very general.
To translate the legalese, a plaintiff’s complaint essentially says “I came, I was treated by the doctor, he was negligent, he hurt me, I’m injured, I want money.” And that’s pretty much what the complaint says. The defendant answers, and the defendant answers similarly. The defendant says “I don’t know if the plaintiff came to me; if they came to me, and I rendered treatment, I certainly wasn’t negligent. And whether I was negligent or not, there wasn’t any injury, and if there was any injury, the plaintiff did it to himself.” And that’s pretty much what the answer says. Not a lot of meat there. And that’s why New York has a special pleading that’s really important for this legal process, it’s called the Bill of Particulars.
This particular kind of document doesn’t exist in other states, but it does exist in New York. The basic thrust of it is, a defendant says “you know, I got your complaint, but it doesn’t really say very much. I want to know, if you say I’m negligent, what is it that I did that’s wrong?” And here’s the challenge for us, and for every plaintiff’s lawyer. If you don’t put it in the Bill of Particulars to particularize the negligence, you’re not going to be able to prove it at trial. Well that’s why preparation, having Dr Nair, and knowing what you’re doing is so important. We have to try and do the best we can to really spell out each and every act of negligence that the defendant did and put it in that Bill of Particulars, and serve it on the defendant.
After that, we enter into the process called “discovery,” and discovery is kind of like Go Fish. It’s don’t ask, don’t tell, do you have any eights? Do you have any sixes? We don’t have to tell them we have eights or sixes, but if they ask us, we have to reveal it. And in this process of discovery, the court’s going to set up a schedule in a preliminary conference that says when information has to be exchanged between the two parties, and that’s what the discovery process is.
The part that most people have heard of is the depositions. Depositions are where each side gets to ask the other side questions and cement their stories. This is another very interesting challenging part of a case, for the clients, for the doctors, and for the lawyers. Everybody wants to be understood when they communicate, but this is a process that’s about information control. And one of the things that I will do, if you happen to be my client, is teach you how to listen to a question, and how to answer a question when the defendant is asking you questions, because how you answer your deposition questions is going to have a profound effect on what happens at the trial.
Likewise, I’m going to get a chance to ask the doctors questions, and to get their story out about what happened. After all, both sides have the medical records. Both sides know what’s in the medical records. What they don’t know are conversations that took place. What they don’t know are thoughts that were in the minds of the people who are involved, and so that’s what a deposition reveals.
After the depositions are over, we’re finally at the stage where an evaluation of your case of a different kind can be made. After all, how good is an argument that one side has or another side has isn’t going to be known until all the depositions are done and you can hear what different people have to say about what happened. You can look at the medical literature, you can look at the facts, the whole thing can be put together and each side knows their case. That’s why the court, being mindful of exactly what I just said, will schedule pre-trial conferences to start at around this time. This is when settlement discussions sometimes happen.
We’ve all heard about the settlement that happens on the courthouse steps, before that happens there is the pre-trial conference. And at that conference, the judge calls the parties lawyers and asks them “Okay, you folks have been litigating this case now for a while, you’ve evaluated the case; what’s your position?” And at that time, the plaintiff may have a demand, and if there’s a demand that we want to make to the defendant, that’s going to be something that I’m going to do after talking to you, the client, where I will give you the benefit of my experience, how other cases demonstrate value, and give you an idea of what we’ll ask for, and what it’s possible that we might be able to get in return, for fair settlement value. The judge wants to know if we’re going to be prepared to discuss the case. We will be prepared.
The defendant likewise comes in and gives an opinion to the judge that says “No pay, judge!” Well if there’s no pay there’s nothing to talk about. Let’s go to trial. On the other hand, if the defendant comes in and they’ve evaluated the case and they see exposure there, then in that case they will have an offer to make. This is when there’s back-and-forth, not always at the same day or even the same week, where the plaintiff and the defendant go back-and-forth to determine if they can reach an agreement. If they can’t reach an agreement, there’s a trial. If they can reach an agreement, the case is settled. That’s the case and the process, in a nutshell, of what happens.
One of the things that I can promise you is, not only will we be prepared, but I will communicate with you every step of the way so that you can be making informed decisions about how you want your case to go. If you have a case, and you’d like to discuss it with me, please give me a call.
This blog was provided by Marc Chase, an experienced Brooklyn medical malpractice lawyer.
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