While many personal injury claims can be resolved (via settlement) at any point between the time of the injury and the moment a judge or jury renders a verdict at the conclusion of a trial, resolution of a medical malpractice claim typically takes longer when compared with other injury-related cases. In this article, we'll explain what that typically means for patients who are seeking a legal remedy for the provision of sub-standard medical care, and we'll look at some possibilities in terms of when medical malpractice cases are most likely to be resolved.
Settlement May Occur Before a Lawsuit Is Filed
Filing a medical malpractice lawsuit means the injured patient (the "plaintiff") needs to be ready to prove that medical malpractice occurred. While the requirements differ from state to state, typically that means showing (1) that the doctor and possibly the hospital provided sub-standard medical care (“liability”), and (2) the extent of the resulting injuries, lost income, pain and suffering, and other losses ("damages").
But in some situations, the parties might come to a settlement agreement before a lawsuit is even filed. It's not a common scenario, but the malpractice claims most likely to be resolved without ever filing a lawsuit –- that is, at "early settlement" -- include those in which all parties fundamentally agree about:
- what happened (what the health care provider did wrong), and
- the resulting harm (exactly how, and to what extent, the patient was injured; "medical malpractice damages" in legalese).
This usually means that the patient's injuries are either minor or at least not susceptible of worsening over time, and the negligent doctor was covered by insurance at the time of the malpractice.
It's important to note that this kind of "clear liability" is relatively uncommon in medical malpractice cases. And even where fault is clear, the claim still must be supported by proper evidence, including:
- written statements and reports of treating physicians and medical experts
- treatment records
- photos, x-rays, MRIs, or other images of the injuries
- medical bills, and
- proof of lost earnings for any work absences and any other losses.
If there really is nothing to argue about in court, that usually becomes clear within the first 30 to 90 days after discovery of the malpractice.
However, a number of factors still can make early settlement of malpractice claims difficult, including:
- the medical and legal complexity of the issues
- reluctance of medical malpractice insurance companies to settle
- insured doctors often have the right to disapprove settlement because public reports of malpractice settlements affect their professional reputations, and
- mandatory arbitration agreements required by certain HMO health insurers may keep their members from filing lawsuits; you may be required to submit any medical malpractice claim to arbitration rather than taking your case to court, in other words.
Lawsuit Filing Requirements, Discovery, and Motions
Assuming no arbitration agreement exists and a medical malpractice lawsuit is filed, in most states the plaintiff must comply with strict procedural requirements that are unique to filing a medical malpractice lawsuit, including the filing of a certificate of merit and possibly pre-lawsuit screening by a medical panel. These processes can be pretty complex and time-consuming.
Once all prerequisites have been met and the lawsuit is allowed to proceed, the parties must adhere to specific timelines for gathering information that could lead to evidence at trial -- documents, sworn testimony of parties and witnesses (depositions), written questions and answers between the parties (interrogatories) -- during the "discovery" phase of the case. During this phase, the parties get a clearer picture of how the patient's injuries happened and the nature and extent of other losses caused by the malpractice.
For example, if it turns out that the injured patient (the “plaintiff”) was given adequate informed consent regarding known and foreseeable risks associated with a procedure, and that procedure was performed in line with the applicable medical standard of care, the plaintiff's case may weaken considerably.
The discovery phase can last up to 12 months or more following the lawsuit’s filing. After discovery, the defendant health care provider may seek to have the case dismissed by various formal motions to the court, such as a motion to dismiss or a motion for summary judgment.
Arbitration and Mediation
If an arbitration agreement precludes filing a medical malpractice lawsuit, the injured patient must present the malpractice claim at an arbitration proceeding, which is a form of "alternative dispute resolution" (ADR). The process works very much like court proceedings, including a discovery phase, with each side presenting witnesses and other evidence at a hearing.
Courts usually accept arbitration decisions. The entire process usually is designed to resolve the case within 18 months after the injured person initiates arbitration.
If a lawsuit has been filed, then shortly after discovery is completed, most courts schedule the parties for what is called “mediation,” a less formal ADR process. A neutral third party “mediator” helps the parties understand the most likely outcome if the case goes to trial -- how a judge or jury probably will decide -- and tries to guide them toward settlement.
The mediation process itself may last between a few hours and a couple of days. If successful, the claim may be resolved and the lawsuit dismissed within one to two years after the underlying malpractice.
Learn more about arbitration versus mediation.
Trial
Like most personal injury cases, very few medical malpractice claims reach the trial stage after all other attempts at resolution have failed. Trial is expensive and time-consuming, and the outcome is uncertain. Parties often can wait as long as two years or more before their medical malpractice case gets to trial.
The Sooner the Better? Not Necessarily
We surveyed readers who brought a medical malpractice claim against a doctor or other health care provider, and learned that getting the matter resolved faster didn't correspond with a better outcome. As you can see in the chart to the right, around half of those surveyed said their medical malpractice claim process took six months or less from start to finish, but only three percent of those six-months-or-less respondents received anything at all in the way of a settlement or court award.
When a survey respondent's medical malpractice claim took longer than six months to resolve, their chances of receiving compensation jumped from 3 percent to 20 percent. Read more about how long a medical malpractice claim might take, according to our readers.
Impact of Hiring a Lawyer and Filing a Lawsuit
Our reader survey included some interesting data about the impact that hiring a lawyer and filing a malpractice lawsuit can have in medical malpractice cases. First, the disappointing (but not surprising) news. Hiring a lawyer will probably lengthen the time it takes for your case to reach a resolution. Readers who tried to handle their claim by themselves reached a resolution in an average of 10.2 months. For those who hired a lawyer? The average claim duration was 17.8 months.
This difference makes sense if you think about it. When you hire a lawyer, they'll need to spend some time investigating your claim and working with expert witnesses to maximize its value. Now for the good news. Readers who hired a lawyer were almost twice as likely to get a payout from the insurance company as those who went it alone.
The results were much the same for readers who filed a lawsuit compared to those who didn't. Filing suit means it will take longer to wrap up your claim. Readers who filed suit reached a resolution in an average of 20.2 months, as compared to 11.4 months for those who didn't file. Again, this shouldn't come as a surprise. When you file a lawsuit, the defendant's lawyer will need time to investigate the case and consult with experts to be in a position to advise the insurer about settlement.
But filing suit also paid dividends for our readers. Those who sued were more than four times as likely to get a payout as those who didn't. When it comes to getting a fair settlement for your malpractice claim, the old saying is true: Patience really is a virtue.
If you're ready to discuss your potential case with a lawyer, get tips on finding the right medical malpractice attorney.