My Process for Handling Medical Malpractice Litigation and Lawsuits
Each medical malpractice case has its own facts and
each client has his or her own interests and needs, so no two cases
are identical. Medical malpractice cases often carry special
emotions too, either because of the anger and hurt over the damages
or a hesitancy to sue a doctor that may have treated the patient for
a long time. The medical malpractice litigation may take time. I spend a lot of time listening to my clients and
answering their questions and concerns.
You should know what to expect if you
retain me to handle your medical malpractice case. There are five
aspects to each medical malpractice litigation:
Getting Started with the Medical
Malpractice Litigation
To get started, I will meet with you to
hear and understand your story. I will review the issues with you
and what we must prove to win a medical lawsuit and I will outline
all of the services that I will provide to you. If you decide to
retain me to represent you on the case, then I will do the
following:
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Have you sign a retainer agreement.
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Give you a Welcome Kit, the first of six client reports. The Welcome Kit contains an overview of the services I provide, a statement of client rights and responsibilities, a timeline for the case and other introductory information.
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Have you sign medical release forms: To conduct an investigation, I need to collect copies of the appropriate medical records as well as other documents. Collecting those records requires that I have your written authorization.
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File a claim letter: This notifies the defendant that you have a potential claim and that I represent you.
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If the case involves a death, we may need
to obtain the necessary legal authority to authorize the release of
medical records and to pursue the case. I will work with you on that
process, which may involve filing papers in the Surrogate’s Court.
The Medical
Malpractice Lawsuit in New York
Unlike what you may read in the press,
bringing a medical malpractice case in New York is quite difficult.
Frankly, it should be. Not every bad outcome is a result of medical
malpractice. If medical malpractice does occur, it is important to
pursue the matter. Medical malpractice lawsuits bring justice to
victims and help improve the safety of our heath care system.
To bring a medical malpractice lawsuit in
New York,
you must establish the following:
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That the case involves a substantial deviation from good and accepted medical practice;
And
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That the deviation caused significant harm.
New York medical malpractice law requires
the attorney to file a certificate that he or she has consulted with
a medical expert who verifies the case meets both requirements. It
is not enough to show a deviation from good and accepted practice;
one must prove that it caused the negative outcome. Similarly, a
case may have a negative outcome, but it may not have resulted from
a deviation from accepted practice. In New York, a medical
malpractice case must meet both conditions to succeed.
Conducting the Medical Malpractice Investigation
All investigations start by collecting
all pertinent information. Therefore, I start by taking these
actions:
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Collecting the medical records. I seek these records immediately, though we may need to wait on some until you finish treatment. Some providers require persistence contacts before they send the records.
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Researching the history of complaints or previous lawsuits against the physician, health care provider or facility.
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Contacting and interviewing witnesses.
I assemble a team of experts needed to
consult on the medical malpractice case. In previous medical
malpractice cases, I have used the following type of experts:
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Medical reviewers to assist in the review and presentation of the medical records
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Surgeons, physicians, nurses, respiratory therapists and medical providers
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Medical examiners
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Quality care experts, including experts on medical record keeping
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Medical researchers
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Pharmacologists
I also conduct legal research seeking
similar medical malpractice lawsuits and identifying decisions that may affect your medical
malpractice case.
Preparing an Assessment of Your Medical Malpractice Case
Once I complete the investigation, I will
gather all the material, information and research and assess the
case. I consult with the team of experts as necessary. I then
prepare a detailed Case Assessment, the second of the
six client
reports. The assessment looks at these issues the key issues in
the medical malpractice litigation:
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The Facts of the Case: A review of all the facts in the case.
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Liability: I explain the issues in proving the defendant’s liability and estimate what a jury is likely to find.
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Damages: I review the injuries and other damages you or your loved one have suffered and estimate the value the jury will place on those damages.
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Proceeding to Trial: This section reviews my approach as we proceed to trial, including an estimate of how long it will take for the case to come to trial.
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Settlement Options: This section assesses the value of the case in settlement talks and the likelihood that the defense will be willing to settle. Some cases are more likely than others to settle and some insurers are more likely to settle than others.
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Recommendation: I close each Case Assessment with a series of recommendations on how best to proceed.
I will review the Case Assessment with
you to ensure that I have all the facts correct and to discuss the
details of the case and my evaluation of it. We will then discuss
how best to proceed.
Pursuing a
Medical Malpractice Settlement
In all cases, we proceed down two
parallel paths: preparing for trial and seeking settlement. The
better we prepare for trial, the more likely a settlement becomes.
It is always worthwhile to pursue
settlement options, though not all cases will or should settle.
I use the Case Assessment to prepare a Settlement Package that I
present to the defense. I try to submit this settlement package
before formally filing a lawsuit as that gives the defense an
opportunity to settle without incurring substantial legal fees.
Medical malpractice cases are very expensive to bring to court, so
the defense is often willing to consider a settlement to avoid those
costs.
There is never a time when the settlement
door closes. Throughout the process, I will remain in contact with
the defense to see if they want to offer a settlement that meets
your needs. Just as the defense is never required to offer a
settlement, you are never required to take a settlement.
The New York Trial
Lawyers Association (NYSTLA), in which I am an active member,
sponsors a
mediation program for medical malpractice cases. I review all
medical malpractice cases to determine if they are appropriate to
consider using the mediation program.
Pursuing the
Medical Malpractice Lawsuit
After completing the investigation, if a
case does not settle early, I will file a lawsuit on your behalf.
We may accelerate the filing of the lawsuit in the timeline if we
need to meet any statute of limitations requirements. There are
three main phases to the typical medical malpractice lawsuit
litigation:
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Filing the lawsuit and exchanging the initial papers: We begin the lawsuit by filing a Summons and Complaint. That action triggers an exchange of legal papers with the defense. Upon filing the lawsuit, I will produce the third of six client reports, the Lawsuit Report, which provides details of the legal process and includes a copy of the papers filed on your behalf.
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Discovery: During the Discovery phase, we will exchange information with the defense and conduct depositions of the parties. When we begin the Discovery phase, I will provide you with the fourth client report, the Discovery Report, which provides the schedule for Discovery and explains the process in detail. We will schedule your deposition where the lawyer for the defense will ask you questions under oath. I will provide you with Deposition Guidelines, the fifth client report, to help you prepare and I will meet with you to prepare for the deposition.
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The Trial: After we complete the Discovery phase, I will put your case on the court calendar. The wait for a trial can take from one to three years, depending on the court backlog. Throughout that wait, I will update the assessment of the case with any new developments. As we near the trial date, I will provide you with the sixth and final client report, a Trial Report, which provides an overview of how I will try to the case. This report also helps you prepare for the trial.
Focus,
Communication and Service
As you can see, I work very hard in
preparing your medical malpractice case and do all I can to ensure
that you receive the justice you deserve. I will keep you abreast of
all developments, including regular updates on the collection of
medical records and the exchange of legal papers and speak to each
client at least once every two weeks. Medical malpractice cases can
be very emotional so I stay close to my clients to offer not only my
professional services, but support as we go through this process.
I also provide a set of
six client
reports that are specific to your case and provide you with detailed
analysis and guidelines:
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Welcome Kit
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Case Assessment
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Lawsuit Report
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Discovery Report
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Deposition Guidelines
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Trial Report
Carol L. Schlitt - New York Medical Malpractice Lawyer
If you or a loved one believe you have a medical malpractice case, you should contact a New York medical malpractice lawyer. If you think you have a case or if you have questions, you can call me and I will be glad to discuss your rights, answer your questions and help you with a potential case. You can call me at 1-800-660-1466 or send me an e-mail at Carol@SchlittLaw.com. The consultation is free and I will be glad to help you.
I hope you have found this information
helpful.
Carol L. Schlitt
New York Medical Malpractice Attorney
1-800-660-1466
Carol@SchlittLaw.com.