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HOW LONG WILL MY CASE TAKE TO FINISH?
January 2024
Once all of the preliminary investigation and paperwork and is completed, the real work of the lawsuit begins. Predicting how long a case will take can be difficult, but generally, most cases follow along a set path directed by the Court.
First, after the Summons and Complaint are filed in Court, they must be served on the Defendants. This should not be a long process as the investigation of the case prior to filing it in Court should have identified all parties and their addresses. Once the Defendants are served, depending on the method of service, they have between 20 and 30 days to file and serve their Answer.
The Answer from the Defendants is a general denial or statement that there is not enough information to make a determination as to the validity of the allegations contained in the Complaint. The Defendant will also usually serve their first set of discovery demands.
The discovery phase of the case includes everything from the beginning of the case up to the trial phase. During the discovery phase, both the Defendants and the Plaintiff will request documents from each other.
During the investigation phase prior to the filing of the lawsuit, the Plaintiff's attorney will request records from hospitals or doctor's offices, however, these records are often incomplete. During the discovery phase, the Defendants must provide certified copies of their records as these will be used as evidence in the case.
As for the Defendants, they will request any documents or records that the Plaintiff may have in their possession. They will also request an authorization to obtain records from other medical providers. The laws regarding privacy and medical records limit the hospitals and doctors from providing records to anyone except the patient. In order for any other person or entity to obtain these records, they must have a signed authorization from the patient, allowing the hospital or doctor to release their records to the requesting entity.
Plaintiffs sometimes are hesitant or anxious about allowing the defense attorneys to obtain all of these records, and these are valid concerns. However, by bringing a lawsuit for medical malpractice, a Plaintiff has put their health conditions and history into question. The Courts have held that a Plaintiff must provide Defendants authorizations to obtain their medical records, as they have a right to defend themselves using the evidence that the Plaintiff will use against them in Court.
Sometimes the Defendant will ask for records that may have no relevance or bearing on the current case. For example, a case involving medical malpractice related to a missed diagnosis of brain cancer has little to do with the care that a person seeks from a dermatologist. However, these requests will be looked at by the Court on a case by case basis, and a clever defense attorney may make an argument that a Plaintiff could have mentioned complaints related to headaches, dizziness or vision problems to a dermatologist, and the Court may look favorably on that argument. In many cases, the Court will side with the Defendant and order the Plaintiff to provide authorizations for these records.
Once the discovery demands have been made and responded to, usually depositions will be scheduled. The Plaintiff will be deposed first, and the deposition will consist of the defense attorney (or attorneys in the case with more than one Defendant) asking questions before a Court reporter. The deposition questioning can cover all of the medical history of the Plaintiff, before and after the claimed malpractice, the care and treatment rendered by the Defendant(s) and the injuries and damage that was caused by that treatment.
After the Plaintiff's deposition, the Defendant(s) will be deposed, and they will be questioned on their education, training, experience, qualifications, their medical treatment of the Plaintiff and their recollection and conversations with the Plaintiff.
This discovery phase can take anywhere from 18 months to 2 years, and sometimes longer if there are multiple Defendants. Additionally, the Court will schedule periodic conferences to monitor the discovery and make sure all sides are cooperating and providing the necessary discovery to the other side.
Once the discovery is complete, a case can then be certified as ready for trial and the Court will then schedule a pre-trial conference. There can be multiple pre-trial conferences. In a medical malpractice case, the pre-trial conference phase is usually the point at which the Defendant(s) will decide if they wish to negotiate a settlement or if they want to take their chances at a trial.
Most medical malpractice cases do not settle before the discovery phase is completed, in contrast to a motor vehicle accident case. There can be several reasons for this, but the most significant reason is that unlike a car accident case, a doctor, in many cases, must give his consent to settle a case. The malpractice insurance that physicians have generates a report of all claims against that doctor, and these claims are used to determine the premiums that are charged to that doctor for carrying the insurance and may, in some circumstances, be used to determine if a doctor is eligible for a position within a hospital or medical provider group.
In contrast, when a driver is sued as a Defendant in a car accident lawsuit, their insurer does not need to get consent or permission from them to settle the case and can make that determination on their own.
Once it is determined that a trial is necessary, scheduling a date with an available judge can take a year or more, depending on the judge's upcoming schedule of trials. Certainly, with the backlog of cases due to the COVID-19 pandemic, this delay has been exacerbated.
In summary, from the time a case is first filed with the Court and officially started, to the time it is settled can take from 3 to 4 years. As always, this estimate will depend on many factors, such as which County the case is filed in, to how many witnesses need to be deposed and how backlogged a particular judge's schedule may be.
The best way to ensure that your case moves as quickly as possible is to respond quickly to discovery demands and provide as much information to your attorney as possible. The less time that is spent waiting on a Plaintiff to sign authorizations, or to provide an answer to their attorney that is required to file a discovery response, the faster the case will move along to its resolution.
McCann Legal, PC
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