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.

Complaint
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.

Answer
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. 

Expert reviews
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.

Discovery
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.

Mediation
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.

Trial preparation
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:

• Voluntary dismissal - Sometimes a plaintiff will voluntarily dismiss the case before trial.
• Dismissal by the court - Sometimes a court will grant summary judgment or other dismissal when the facts or law show there is no chance of success, even if the case proceeded all the way to a jury’s determination.
• Settlement - Settlement can happen at any point in litigation. Where litigation can be uncertain, settlement can eliminate that risk of uncertainty.
• Trial - At trial, attorneys will argue motions to admit or exclude evidence. Counsel will select a jury, make opening statements and ask questions to witnesses. When all of the evidence is complete, counsel will make closing statements and a jury will consider the merits of the case.

• Appeal - After a jury renders a unanimous verdict in favor of one party, the other party may ask a different court to review the trial in an appeal. The appeal process could last over a year.

In all, while medical malpractice clients cannot expect any guaranteed victory in litigation, knowing the process and the time involved will help prepare them for the process ahead.

John D. Martin is a trial lawyer and the managing partner of the Cranfill Sumner & Hartzog LLP’s Wilmington, North Carolina office. Martin concentrates his practice in the medical malpractice and professional liability defense practice groups. He has tried numerous medical malpractice and personal injury cases throughout eastern North Carolina. Many of his cases involve brain injury, birth trauma, paraplegia and wrongful death. Additionally, Martin has experience with large construction litigation, premises liability and hospital/workplace security. To contact Martin, call (910) 777-6018 or email him at [email protected].