Case Timeframe: Process of Filing a Medical Malpractice Case

Interviewer: How long do medical malpractice cases typically last?

Mark Taylor: I’d say typically you’re probably looking at about a year and a half. When you say typical, most cases wind up settling before trial. If it were one that went all the way to a trial, it would probably be longer than that. It depends very much on that county where the case is filed and other factors, but a good rule of thumb is on average it takes about a year and a half.

Filing Process

Interviewer: Let’s recap over the process here just to get the initial steps someone should follow. They’ve noticed there’s some sort of issue that’s happening, whether it’s a mistake that occurred or bad information or surgery. Then they contact you. What’s going to happen from there?

Mark Taylor: The first phase is what I would call the evaluation phase. We work closely with the client to evaluate whether or not this is a claim that can be pursued. To do that, it’s usually a process where we have to get at least some of the medical records and review those. Like I mentioned, we might consult with medical experts in whatever field it is to determine whether or not they feel like the healthcare providers were negligent.

Once we decide to process with the claim, under the new Texas rules we have to send a notice of claim to the hospital or doctor, putting them on notice that we intend to sue them. Promptly after that, we’ve got to get the written reports from the experts that we have ready when we actually file the case. We’d put the doctor on notice with the notice claim letter. After that, the waiting period is done and we file the case. Right after we file the case, we typically file our expert reports.

That’s when the lawyers really get involved on the defense side. The doctor or hospital’s lawyers typically challenge the expert reports that we file. There’s a hearing process that we have to go through to get the court to say that our expert report met all the requirements. Then we’re really into kind of a more traditional phase of any lawsuit, which we would call the discovery phase. That’s where we obtain any additional documents that the hospital or doctor might have that might be relevant to the case. They can do the same with the plaintiff. They can ask for any records or photos or other documents that might be relevant.

Then we also, in that same phase, conduct depositions. That’s where the parties to the case – the doctor and our client – are given a day where they show up and take the oath to tell the truth. The other side gets to ask them questions, which they have to answer under oath. That’s the deposition process.

Typically, after the depositions are complete, mediation will occur. That’s where we try to get the case settled. Sometimes the mediation can be done at an earlier point, but it’s typically done after a lot of the discovery is complete. At the mediation, we meet with a neutral third party. Both sides meet. We just try to figure out if there’s a way to settle the case.

For medical malpractice cases, that can be difficult because doctors usually have the right to veto any settlement. Even though their insurance company is going to be paying the money, the doctor has to actually approve it even though there might be no money coming out of the doctor’s pocket. Doctors are hesitant to approve settlements because it does get reported that they had to pay on a medical malpractice claim and doctors don’t want that out there on their record. Nonetheless, a lot of our mediations are successful and we settle the case at that point. If not, then we’re really at the stage where we’re starting to prepare for trial.