The decision to pursue a malpractice lawsuit against a nursing home can be difficult, and if you are unfamiliar with the process it can easily become frustrating and confusing. As an experienced nursing home litigation law firm, one of the best pieces of advice we can give to clients is to become familiar with the case process. Lawsuits are a lengthy process. On average, nursing home cases can take anywhere from 18 to 24 months from the initial call to the final client receiving the final settlement check. Think of a lawsuit as a marathon- you wouldn’t just wake up and sprint the whole 26.2 miles. Lawsuits, just like marathons, take preparation and time to complete.
The nursing home lawsuit process begins with a case evaluation, which consists of two main parts: an initial consultation and an in-depth investigation of the claim. Think of the case evaluation process as the preparation for the marathon. Our intake specialist begins the free initial consultation by interviewing the potential client over the phone to collect information about the injury and details about what specifically happened. One of our skilled nursing home attorneys will then evaluate the information provided and either accept or decline the case.
Once a case is accepted we begin the in-depth investigation to determine liability (or who is at fault). The investigation process begins with gathering records pertaining to the case (such as medical records, facility records, phone records, etc.). While the records are being collected, the attorney finds an expert to examine the case. The expert is typically a doctor or medical professional that is well respected in their field. They are responsible for examining the case and determining whether there is medical liability found (deciding whether or not the doctor medically made a mistake that significantly harmed the plaintiff). If the expert determines there is no liability found then the attorney will notify the client, and the case will end, unless the client wants to find another law firm to take the case. If the expert finds liability, the attorney will send out a Notice of Claim (NOC) to the defendants and will then file the lawsuit. An NOC is a letter notifying the defendant of the injury and the plaintiff’s intent to file a lawsuit. After the NOC has been served, the attorney will file the lawsuit with the court. This is where the actual marathon begins.
Next, the defendant is served a citation notifying them of the lawsuit. They then have approximately one month to file their response papers with the court. After the defendant’s response is filed, the plaintiff’s attorney serves an expert report to the court. The 2003 Texas Medical Liability Act requires that the plaintiff file a detailed and tailored expert report for each defendant within 120 days of filing the suit. The report must identify the applicable standard of care, show how the defendant failed to meet this standard, and that there is a relationship between the failure to meet the standard and the harm caused. Once the expert report has been served, Defendants then have the right to object to this report. There may be hearings before the court to determine the sufficiency of the report. Next, the discovery process begins. Document requests and interrogatories (written questions) between the plaintiff and defendant are exchanged and oral depositions may take place. The discovery process allows the two sides to exchange information and gather evidence from the opposing party.
Anytime during the filing and discovery process 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. During settlement negotiations the defendant will offer a monetary amount to the plaintiff. The plaintiff can then respond and accept, reject, or counter the offer the defendant provided. 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 judge typically orders mediation before the case can go to trial.
Mediation is a process where a neutral third party is brought in to hear arguments from both the plaintiff and defendant and propose a solution. Before a case can go to trial, the judge typically orders the two parties to attend a mediation session. The mediation process can occur in a couple of different ways. If settlement negotiations are unsuccessful after the case is scheduled for trial the court will typically order a settlement conference conducted by a neutral third party. Mediation can also occur if both sides voluntarily agree to attend a mediation conference. During the conference the mediator will review the case, evaluate the claims on both sides, and conduct further negotiations. The majority of our cases are settled through either settlement negotiations or a mediation conference. Mediation can last anywhere from a half day to two full days. If the mediator is successful in getting both parties to agree to a final amount then they will draft a settlement agreement. If the mediator is unable to have both sides come to an agreement then the lawsuit will go to 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 between a couple of days and two 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).
Any financial recovery is typically disbursed to the injured party about 30 days after a successful settlement negotiation, mediation, or jury verdict. It is important to remember that part of the disbursement process is also paying any outstanding bills or liens. Once the disbursement is given to the plaintiff’s attorney, it is then their job to negotiate and pay all outstanding debts before giving the final settlement check to the plaintiff. If the case involves the death of a nursing home patient, the settlement may also need to be approved by a probate court.
While the above is the general process for nursing home lawsuits there are a few things that may affect the 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 may affect the process and timeframe for a nursing home lawsuit:
Statute of limitations. In Texas an injured party has 2 years from the date of injury to file a lawsuit (with a few very specific exceptions). If a particular case has a quickly approaching statute the attorney may choose to file the lawsuit before an expert finds liability to ensure the case can be pursued.
Finding an expert. Before filing a lawsuit an expert will evaluate the case to determine if they believe the defendant is liable for the damages. 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 and provides all of the information for the report, the expert then has to review that information and put their findings in a report for the court. Many of the experts that are 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 schedule of the expert. It is completely normal for this to happen. Our attorneys have strong relationships with the 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 and requests for documents to be produced. This process can last anywhere from 9 to 12 months 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 has to submit payments. If the lawsuit names multiple defendants, the defendants also may settle their claims at different points in the case process. If there are any outstanding bills or liens, the attorney is 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, etc.) then the negotiation process can also take 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. The attorneys at Powers Taylor have a wealth of experience handling all types of nursing home cases. We fight for those without a voice. Contact us today for a free consultation.