Question: What will happen after the medical malpractice lawsuit is filed?
Susan: A process called discovery occurs. And basically what discovery is, it’s where the attorneys will engage in various practices to determine the facts of the case that will be presented at trial. The attorneys will exchange written questions; those are called Interrogatories. And the client will have to answer some written questions under oath. There is also something called a Request to Produce, where you will send a request to a hospital for documents, for records, for films. You may request policies and procedures from the hospital. You may request a credential file on the doctor. So documents will be exchanged back and forth between the parties. And then the majority of the discovery process involves taking depositions. Depositions are simply asking questions, and the plaintiff or the doctor answers them under oath and then this can be used at trial as a way of pinning down testimony. Normally in a medical malpractice case, the plaintiff will give a deposition and then the defendant doctor will give a deposition. Then other fact witnesses will give depositions, perhaps nurses or respiratory therapists. After those depositions are done, the defense or even the plaintiff may want to take the depositions of those treating physicians, physicians who have treated after the malpractice has occurred. The last type of deposition that is taken involves the experts. The plaintiff’s experts will give depositions. The plaintiff’s attorney will take the depositions of the defense experts. And it’s not unusual in a medical malpractice case for there to be dozens of depositions that are taken. I mean, I have had cases where we have had close to 100 depositions taken in a medical malpractice case. It takes time and a lot of depositions are part of a medical malpractice case.
Question: Are medical malpractice claims routinely settled before filing a lawsuit?
Susan: The short answer is no. That’s definitely the exception rather than the rule. I think I can count on one had the number of times that has happened in the 20 years that I have been practicing. Medical malpractice cases are usually filed. They are aggressively defended and they are litigated for many years.
Question: How long does it take for a medical malpractice claim to be resolved?
Susan: That’s variable. Some of it depends on where you file the case. Some court jurisdictions are more crowded than others. I remember many years ago filing a case downstate in a county and it was the fourth lawsuit filed in that county that year and we filed it in October. Now, if you were to file a medical malpractice case in Cook County in October, there could have been thousands of medical malpractice cases filed before October. So, it depends on where you file the case and a lot of it also depends on the complexity of the case. Some cases truly will involve one plaintiff, one doctor and maybe very little subsequent treatment. Other cases are very complex and there may be a number of defendant doctors that caused or contributed to the injury. And the injury may be very severe and a lot of discovery will need to surround the severity, nature and extent of the plaintiff’s injury. In general, I would say a good rule of thumb is two to five years. Some take longer than that. But two to five years I think is a reasonable estimate.
Question: Do medical malpractice lawsuits commonly go to trial, and if so, how long usually is the trial itself?
Susan: Whether a case goes to trial or not is variable. My experience has been that most of these cases ultimately do settle because we do a good review before we file them and hopefully they are meritorious when we file them or we wouldn’t be filing them. However, if they do settle, they usually do not settle early. They oftentimes settle right as you are walking in the courtroom door for trial. Every case has to be prepared as if it is going to trial. You can never assume that a case will settle. One of the reasons that cases don’t settle in medical malpractice, it’s a little bit different than in other areas of the law. In a lot of medical malpractice cases, the doctor has the right to consent to settle the case or not. Now that’s different than in an auto case. Now if you have an auto accident, your insurance company can settle the case without your knowledge or consent. Doctors usually have the right to consent and some doctors feel very strongly that they did nothing wrong. Insurance companies also get involved. So an insurance company may decide to defend a case even if the doctor wants the case to be settled. Oftentimes, these cases are complex with multiple defendants and there may be fighting as to who is responsible and who is going to pay what. And that will drive a case to trial. The length of a trial is also variable. It depends of the complexity of the case and the number of witnesses. Cases can go from one week to many months. Most cases in my experience are two to four weeks just for a general medical malpractice case.
Question: Are patients successful with medical malpractice cases at trial? Susan: The majority of cases in Cook County that actually go to trial are won by doctors and hospitals. I think the statistic is 70 percent to 80 percent that are won at trial by healthcare providers. And you may ask why has that happened? I think people want to trust their doctors and they have respect for doctors and hospitals. So it’s very hard sometimes for a jury to find a healthcare provider responsible for malpractice. Some of these cases are so complex that it may be difficult for a jury to understand the medicine and the issues. They say, how can I criticize a doctor if I don’t understand it and a good defense attorney is going to make it seem very, very, very difficult, and it’s our job as the plaintiff’s attorney to make the case and medicine as simple as possible. And I think there is also an undercurrent. You have probably heard about Tort Reform. There is some feeling out there among people that perhaps there are too many frivolous lawsuits. That we are driving doctors out of the practice of medicine and that medical malpractice suits raise the cost of everyone’s healthcare. Now, if we have time, I could tell you that none of those things are true in my opinion. But there are those beliefs out there that are held by some people. Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice. Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals. She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.
To learn more about some of the more commonly asked questions people have about injuries caused by medical negligence, please view our medical malpractice page.