The decision to pursue a malpractice lawsuit against a nursing home can be difficult. If you are unfamiliar with the legal process, it can be frustrating and confusing. As an experienced nursing home litigation law firm, one of the best pieces of advice we can give our clients is to become familiar with the steps.
Lawsuits are a lengthy process. On average, nursing home cases can take anywhere from 18 to 24 months, or longer, from the initial call to disbursement.
Think of a lawsuit as a marathon – you wouldn’t just wake up and sprint the whole 26.2 miles. Lawsuits, like marathons, take preparation, hard work, and time to complete.
- Initial Case Evaluation. The nursing home lawsuit process begins with an initial case evaluation. This step consists of two main parts: an initial consultation and an investigation of the claim. Think of the case evaluation process as the training for the marathon. One of our intake specialists begins the free initial consultation with a phone call. We will collect information about the injury and details about what specifically happened. Our skilled nursing home attorneys will then evaluate the information provided and either accept or decline the case.
- Client Engagement. Once we accept a case, we contact you to discuss possible representation. If you to hire our firm, we will send engagement materials. These include and attorney representation agreement and documents we will need to order records for the case. You will have a more in-depth interview with one of our attorneys where they will explain the laws, process, and answer any questions you have in more detail.
- Claim Investigation. Once we have been engaged in a case, we start a more in-depth investigation to determine if the claim involves mistakes in medical care that rise to the level of medical negligence (also known as “medical malpractice”).
Our investigation process begins with gathering records pertaining to the case (such as medical records, facility records, billing records, records from our clients, etc.). This is a time-consuming process. While the records are being collected, the attorney finds an initial consulting expert to examine the case. This expert is typically a doctor, legal nurse consultant, or other medical professional who is well respected in their field. The expert is responsible for examining the records gathered to determine liability. Liability is determining whether mistakes in the medical care were made, who made those mistakes, and what, if any, injuries were caused by these mistakes.
If the expert determines that there is no liability found, then the attorney will notify the client, and the case will end. At this point, the client may either drop the matter or seek a second opinion from another attorney.
- Notice of Claim. If the expert finds liability and we determine that the case is one we can move forward with, the attorney will send out a Notice of Claim (NOC) to all potential defendants. An NOC is a statutorily-required letter notifying each defendant of the injury and the plaintiff’s intent to file a lawsuit. Typically, an NOC must be sent to each defendant sixty (60) days before a lawsuit is filed.
- Lawsuit. After the NOC is sent, the attorney will file a lawsuit with the court. Regardless of whether the case is filed in court or arbitration, this is where the real marathon begins. Once the case is filed, the defendant is served with the lawsuit and a citation notifying them of the lawsuit. Each defendant must file an answer with the court approximately one month after being served with the lawsuit.
Chapter 74 Expert Report Stage. After the defendant files its answer, the we serve an expert report on each defendant. These reports have to meet the requirements of Chapter 74 of the Texas Civil Practice & Remedies Code. This is a highly technical report. The 2003 Texas Medical Liability Act requires that the plaintiff in a medical malpractice lawsuit serve a detailed and tailored expert report to each defendant within 120 days of the defendant’s answer. The report must identify the standard of care, explain how the defendant failed to meet this standard, and how those failures resulted in specific injuries to the patient. Once the expert report has been served, a defendant then has the right to object to the report. There may be hearings before the court to determine the sufficiency of the report. During this, all discovery (other than getting the patient’s medical records) is stopped.
Discovery Stage. Once the case moves out of the Chapter 74 Expert Report Stage, the discovery process begins. The discovery process allows each side to exchange information and gather evidence from the other. During this stage of the case, document requests and interrogatories (written questions) between the plaintiff and defendant are exchanged. The parties can take depositions, which is when they question each other and any witnesses under oath. The parties can also get documents, reports, and depositions of all experts designated by the other side.
- Settlement Negotiations and Mediation. Most of our cases are settled through settlement negotiations or a mediation conference. We feel strongly that this offers the best possible results for our clients because of the high cost and uncertainty of taking a case to trial.
Any time during the case from the date of initial filing, settlement negotiations can take place. Settling a case before going to trial can reduce expenses while still providing a similar amount of compensation to the injured party. The plaintiff’s attorney will make an initial demand to the defendant to resolve the case. The defendant may then ignore the demand or offer a different monetary amount to the plaintiff. The plaintiff can then respond and accept, reject, or counter the offer provided. This process may be quick, or it can extend over a period of weeks or months. Every case is different. However, if the two parties can agree on an amount, then an agreement will be drafted and the lawsuit will be dismissed. If the two sides are unable to agree on an amount, the case continues to move forward.
Mediation is a process where a neutral third party (a mediator) is brought in to hear arguments from both sides and help the parties voluntarily resolve the case.
The mediation process can occur in a couple of different ways. First, the judge overseeing the case orders the parties to attend mediation at least once before the case can go to trial. Mediation is typically ordered after the parties have completed most, if not all, discovery in the case. Second, both sides can voluntarily agree to attend a mediation conference at any point in the case.
During mediation, the mediator will review the case, evaluate the claims on both sides, and help the parties negotiate between themselves to resolve the case. If the mediator is successful in getting both parties to agree to a final amount, then they will draft a settlement agreement. This is a written contract between the parties that is enforceable like any other contract. If the mediator is unable to get both sides come to an agreement, then the lawsuit continues to move forward toward trial.
- Trial. A lawsuit will go to trial if both mediation and settlement negotiations are unsuccessful. The trial process involves both parties arguing their points in front of a judge and a jury of their peers. Trial can take anywhere from a few days to many weeks, depending on the complexity of the case and the jury deliberations. Once the jury has heard the evidence and comes to a decision, they will provide their verdict (or decision on the case). Once a verdict is made by the jury, the parties will have the court sign a judgment.
Financial Recovery from a Nursing Home Case
A financial recovery in a nursing home case comes from a settlement or a judgment following a trial. All parties have to agree to and sign a confidential settlement statement before payment begins. Part of the disbursement process is paying any outstanding medical bills, liens, and case expenses. We work to negotiate and pay out all outstanding debts before giving you the final payment. If the case involves the death of someone, the settlement may also need to be approved by a probate court. This process can take months in some cases, but we try to get it done earlier in the case.
Each case is different, but we work hard to make sure outstanding debts are low as possible and already paid so we can disburse the rest to you as soon as possible.
Variables That May Affect the Process or Timeframe
While the above is the general process for nursing home lawsuits, there are a few things that may affect how quickly the case can move forward or the process that your individual case will take to be resolved. Each case is different. The attorney for your case will be the best person to examine the facts of the case and decide how to proceed. Below are some variables that can affect the process and timeframe of a nursing home lawsuit:
Statute of limitations. In Texas, an injured party typically has 2 years from the date of injury to file a lawsuit (with a few very specific exceptions). If a case has a quickly approaching statute of limitations, the attorney may file the lawsuit before an expert finds liability to ensure the case can still be pursued.
Finding an expert. Before filing a lawsuit, an expert will evaluate the case to determine whether medical negligence occurred. For some cases, finding an expert can be tricky due to the expertise needed. Sometimes it will take the attorney longer to find just the right expert.
The expert report. Once an attorney finds the right expert for the case, the expert reviews the case information and discusses the specifics of his or her findings in a report for the defendant. The experts typically used are doctors with very busy schedules. Sometimes, the report writing process can take longer than expected due to the complexity of the case or the expert’s schedule. It is completely normal for this to happen. Our firm has strong relationships with our experts and are always very conscious of any upcoming deadlines.
The discovery process. The discovery process is different for every case. Each side submits questions, requests documents, and schedules depositions. This can last anywhere from 9 to 18 months (or longer) depending on the number of defendants, the complexity of the case, and how quickly both sides respond to requests.
The disbursement process. The financial disbursement process can vary on a case by case basis. The settlement agreement will determine the amount of time in which a defendant must send payments. If the lawsuit includes multiple defendants, they may settle their claims at different points in the case process. If there are any outstanding bills or liens, we are responsible for making sure those are paid off before disbursing the money to the client. If the attorney is helping negotiate the bills and any liens (Medicaid, Medicare, V.A., others), it takes time and is often dependent on the bill or lien holder.
Each and every case is different. While there is a general process for nursing home cases that most lawsuits will follow, the exact progression or timeline for each case is different. As your case proceeds, rest assured that our firm is doing everything in our power to obtain the best result for you and your family, as quickly as possible.