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How is a claim made?
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Before a lawsuit can be filed and before a claim can even be made, we have to gather
up all of the relevant medical records. We initially review these ourselves and then
have them reviewed by an expert. If the expert agrees that medical malpractice
occurred an affidavit is prepared summarizing their opinion and this is sent to who
ever we are making a claim against along with a Notice of Intent which also outline's
the negligence and damage issues in the case. Once they receive this they then have 90
days to investigate the claim. During this time period either side can take unsworn
statements and obtain information concerning the case. At the end of the 90 days, the
defense has the option to either: (a)settle the case, (b)admit liability and proceed
to arbitration on damages, or (c)deny the claim. Usually the defense denies the claim.
Once this happens a lawsuit is filed.
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How long will it take to resolve my case?
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The typical
medical malpractice case takes between 1 and 2 years from the
date the complaint is filed to get resolved. |
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Why don't they just accept responsibility for my damages when my surgery or
medical procedure didn't go well? |
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This is usually the most difficult thing for people to accept. In Florida (and
across the U.S.) in order to win a med mal lawsuit it is not enough to show that
you were injured, you (or whoever the plaintiff is) have to prove (have the legal
burden to prove) that the doctor or other health care provider was negligent. A bad
outcome in a surgical procedure does not necessarily mean that the doctor was negligent.
Ultimately, the jury must find that the doctor or hospital did something wrong that
caused your injury. |
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What happens during a lawsuit? |
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Once a lawsuit is filed, the parties engage in "discovery," which is exactly what
it sounds like. The parties "take discovery" by sending out written questions that
have to be answered, request's to produce (asking for document's) and taking
depositions (sworn statements under oath) of anyone who has important information
about the issues in the case. All of this is done "in office." Depositions are
usually at the lawyers office or at a court reporter's office. Discovery is not
done at the courthouse and doesn't involve the Judge (unless the lawyers get into a
disagreement). Before the case goes to trial the parties attend a mediation. During
the litigation all legal issues that arise are argued in front of the Judge at the
courthouse.
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What is a mediation? |
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A mediation is a settlement
conference which takes place before the trial. Each side appears with their
lawyer and each side present's their cases to the mediator, and of course all
the other's in the room. The mediator is usually a retired judge or an
experienced attorney. They do not rule on or decide any issues in the case. The
mediator is paid for equally by the parties and his job is to try and help the
parties get the case settled. Everything everyone say's during the mediation
conference is "privileged," that is to say, nothing said during the mediation
can be evidence in the case or brought before the judge or jury. If the parties
are unable to settle the case during the mediation, then the case proceeds to
trial.
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Why won’t an attorney take my case even though the doctor was
clearly negligent? |
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We cannot accept every case involving medical negligence. Medical malpractice cases
are very expensive to litigate and try, more then almost any other type of personal
injury case. It is not unusual to spend between $50,000-$100,000 to handle a med mal
case through trial. Don't forget, if we are unsuccessful in prosecuting your case,
you will not be responsible for any of the costs incurred. You only become responsible
for costs if we win the case. As a result, attorney's cannot take on every case.
In addition to the medical provider being negligent, the case has to be economically
reasonable. |
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Will there be a jury trial or settlement? |
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While the majority of cases settle without trial, medical negligence cases have a
high instance of proceeding to trial. It is important to have a lawyer that the
insurance company knows will try your case, and, try it well. You will never get
the full value of your case if they don't believe your lawyer will go to trial.
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Do you represent doctors and hospitals? |
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We only represent injured persons. We do not represent any
doctors or hospitals in medical negligence actions. |
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