When medical provider clients are faced with a lawsuit, they frequently ask about the general litigation process and how long that process will take. What follows is a brief review of the litigation process in a medical malpractice lawsuit in state and federal courts.
Litigation formally starts when a complaint is filed in court. In N.C. medical malpractice lawsuits, the complaint must state that an expert has reviewed the facts of the case and has an opinion that the health care provider has violated the standard of care.
Once a complaint has been filed and served, a defendant will have about 30 days to file an answer. A defendant can request an extension of time, perhaps to secure legal representation or to conduct a preliminary investigation of the facts.
Defense counsel will contact various experts to review the matter in order to determine whether the facts alleged have any merit. These experts may offer opinions or raise additional questions that might be integral to the defense of the lawsuit.
The parties then spend anywhere from six months to more than a year learning more about the opposing party’s case. The parties will exchange written questions, request materials relevant to the case and take depositions of witnesses. Health care providers may participate in depositions by answering questions under oath. The testimony will be reduced to writing for later use, either at trial or in other discovery.
In mediation, a neutral person - often a retired judge or a highly experienced attorney - will try to work with the parties to reach a mutually acceptable settlement. The mediator cannot order a settlement and the parties are not obligated to follow the mediator’s recommendations. Mediators are paid by the parties but the cost is a small fraction of the cost of litigating the case through trial. Mediation may last for just one day.
If mediation is unsuccessful, defense counsel will prepare for trial. Counsel will gather exhibits for trial such as medical records, medical illustrations and videos and medical literature. Counsel will prepare witnesses for trial. In large cases, counsel may test the case with focus groups or conduct mock trials to test theories.
Resolve the lawsuit in one of four ways:
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