Medical Malpractice Case Progression

No two medical malpractice cases are exactly the same but they all follow a similar process. Below is an outline of the stages of the litigation process:

1. Medical review – validation that malpractice likely occurred –
For medical malpractice cases, there are certain preparations that must be done before filing the lawsuit. That is, your medical records must be reviewed by a medical expert who concludes that your health care provider deviated from the standard of care. So, if you believe your surgeon committed malpractice, you need another surgeon – your attorney will likely find this person - to review the records before filing your lawsuit. This expert must sign an affidavit saying they believe malpractice occurred.

2. Filing your lawsuit – a summons and complaint is filed in the appropriate court within the appropriate deadlines-
Typically, your lawsuit will be filed in the county where the malpractice occurred. This is done, as noted above, after the expert review and before the statute of limitations has run. In Illinois, the court will ask (a) when you could have reasonably discovered that malpractice occurred or (b) the actual malpractice date (for example, the date of your surgery)? You have time limits for filing this suit. Note that if the statute of limitations is about to expire, you can still file your lawsuit granted you get the expert review done within 90 days.

3. Discovery phase – when each side learns more -
This is the phase during which your health care provider, the defendant, learns more, reviews the evidence and prepares a defense. This is done by recruiting experts of their own who believe that the standard of care was not violated, conducting depositions of all parties involved, including relevant witnesses and reviewing medical records from your previous heath care providers, among other things. Your attorney should explain why certain requests are being made and prepare you for your deposition, if necessary.

4. Motions – asking the court to make a decision before trial –
When discovery is over and each side has collected evidence for their case, motions can be made to the court – the most common of which is the motion for summary judgment. A summary judgment motion is when a plaintiff or defendant asks the judge to decide the case without a trial because, it is argued, the facts collected during discovery speak for themselves and there is no real dispute.

5. Negotiations – will you settle out of court?
Oftentimes, plaintiffs and defendants will settle before or even during trial. Negotiations can occur either by the lawyers talking directly or by mediation of an unbiased third party. Your attorney should discuss your goals with you at the beginning of the process and what a reasonable settlement offer would be.

6. Trial – before a judge and jury -
A trial takes place before a 12 person jury and typically takes at least one week or more. Because the case involves medical data, it can be very complex. Having a good attorney is often the difference between winning and losing a case. Your lawyer could be brilliant, but if the jury doesn’t like them or understand them, you will likely lose.

7. Verdict- the decision -
The jury will deliberate and make a decision. In the rare instance that they cannot come to a decision, the jury is considered “hung.” If that happens, you and your lawyer will discuss your options and possibly return to negotiations or another trial.

8. Post trial motions and appeal – after the trial -
Each side can appeal to the Illinois Appellate Court or file motions requesting that the judge change the verdict. Your lawyer will explain this stage of the process and how to proceed or respond.

If you are looking for a medical malpractice attorney or have questions about the case, contact us. We can recommend one best suited for the facts of your case and your location in Illinois. If you have any questions about the process described above, call us. All calls and emails are free and confidential.