The decision to pursue a malpractice lawsuit against a nursing home can be a difficult decision. If you are unfamiliar with the legal process, pursuing a lawsuit may become 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 case process.
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 trial and judgment or obtaining final payment from a settlement if the case was resolved before trial.
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, hard work, and time to complete.
Initial Case Evaluation. The nursing home lawsuit process begins with an initial case evaluation. The case evaluation step consists of two main parts: an initial consultation and an 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 each 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.
Client Engagement. Once we accept a case, we contact the potential client to discuss possible representation. If the client agrees to hire our firm, we meet with the client to discuss all aspects of the representation, execute an attorney representation agreement, and discuss the litigation process in more detail.
Claim Investigation. Once we have been engaged in a case, we begin 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 identifies an initial consulting expert to examine the case. The 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 in the case to determine liability – 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 the firm determines that the case is one which the firm is willing to pursue, 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 has been served, the attorney will file a lawsuit with the court. If the case requires that disputes be settled by arbitration, the attorney may choose to file the case directly with the designated arbitration service. Because the arbitration process is seldom utilized and differs from the traditional litigation process, for any case that requires arbitration the attorney will explain the arbitration process directly with the clients.
Regardless of whether the case is filed in court or arbitration, this is where the real marathon begins. Once the case is filed in court, the defendant is served with the lawsuit and a citation notifying the defendant 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 plaintiff’s attorney serves an expert report on each defendant that meets 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 applicable standard of care, explain how the defendant failed to meet this standard, and discuss 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 process, 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 of the lawsuit to exchange information and gather evidence from the opposing party. During this stage of the case, document requests and interrogatories (written questions) between the plaintiff and defendant are exchanged. In addition, the parties can take depositions, which is when they question each other and any witnesses under oath. Lastly, the parties can obtain documents, reports, and depositions of all experts designated by the other side.
Settlement Negotiations and Mediation. Most our cases are settled through either 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. During settlement negotiations, the process begins with the plaintiff making 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 the plaintiff and defendant and help the parties voluntarily resolve the case. The mediator does not propose a solution or rule on the case.
The mediation process can occur in a couple of different ways. First, in almost every case, 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 to occur after the parties have completed most, if not all, discovery in the case. Second, mediation can also occur if both sides voluntarily agree to attend a mediation conference.
During the 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 just 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.
A financial recovery in a nursing home case comes either through a settlement or a judgment following a trial. Any financial recovery is typically disbursed to the injured party about 30-90 days after a successful settlement negotiation, mediation, or jury verdict. Some cases may take much longer because of payment plans by the defendant, appeals, complications resolving healthcare liens, or other actions after trial. It is important to remember that part of the disbursement process is also paying any outstanding medical bills, liens, and expenses. 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 payment 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. This process can take months in some cases.
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 may affect the process and timeframe for 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 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 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 and provides all the information for the report, the expert then must review that information and discuss the specifics of his or her findings in a report for the defendant. 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 expert’s schedule. It is completely normal for this to happen. Our attorneys have 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 for documents to be produced, and schedules depositions of witnesses, parties, and experts. This process typically lasts 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 submit payments. If the lawsuit includes 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, Medicare, V.A., others) 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. As your care 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.