How much do you know about how medical malpractice lawsuits go? Most of us physicians either know TOO MUCH -- having been through it -- or NOT ENOUGH! Although it feels strange and a little sad to think about it this way, it is true that the possibility of a medical malpractice lawsuit is one of the few things that unite us as American physicians across all specialties. That and Gross Anatomy. What a notion! And yet, most of us received little, if any, education on this front in residency or fellowship. Let’s remedy that a bit by taking a look at a skeletal timeline of a medical malpractice lawsuit.
Timeline of Medical Malpractice Litigation
Have a look at the timeline above. On the left, you see incident, and on the right, trial.
Only ten percent of medical malpractice lawsuits in the US go to trial. Most come to a close for any number of reasons at any point along the way.
Above the timeline, you see a bracket indicating 1 1/2 to 4 years. That is the average length of time it takes for a medical malpractice lawsuit in the United States to resolve, whether it goes to trial or not.
I don’t say that to discourage you, but rather to give you a realistic picture of what to expect. Should you happen to find yourself confronted with a lawsuit, it’s better to know that it is not likely to wrap up quickly. From the outset, I want you to plan for a marathon; give yourself the care you need and seek out the support that will help you to get through a long haul rather than a sprint. If it goes long, that that neither reflects badly on you nor on your particular lawsuit. Faster is not necessarily better; in fact, sometimes it’s to the contrary.
Incident
“Incident” refers to the original medical occurrence which resulted in the lawsuit, be that a surgical complication, an alleged misdiagnosis, an alleged medical error, or any other circumstance. “Incident” may also be defined as the the moment in which the patient or family realized that something may have gone wrong. If, for example, they believe that a radiologic study may have been misread and that, had it been read differently, the patient would not have the illness they currently have, then the moment at which it came to their attention that the original study may have been misread would be the point on this timeline that we'll call the incident.
Statute of Limitations
Next we see “statute of limitations.” This is the time window within which a complaint or a lawsuit must be filed after any given incident. I have "years" in parentheses because this window typically represents a period of 1-2 years, though it can be longer. The length of the statute of limitations is defined by state law and varies somewhat from one state to another. It also frequently depends upon the nature of the occurrence and the type of patient. (Read more about it here.)
Complaint Filed
This represents the moment when the lawsuit is filed, generally by a lawyer who has agreed to represent the plaintiff, by which we usually mean the patient or their family.
Response Required
Once the lawsuit has been filed, a prompt — and I mean PROMPT — response is required from the defendant, the person (eg - physician) or entity the lawsuit has been filed against. Pay close attention here! Depending upon the state, this response must occur in a period of 20-30 days.
Failure to respond is a big no-no. It may result in the court automatically entering a judgment against you. A skilled medical malpractice defense attorney should file that response right away on your behalf.
Sorry for shouting, but DO NOT call up the attorney or patient who filed the lawsuit to try to hash it out. Once they’ve come this far, that WILL NOT WORK.
Case Management Conference
A case management conference is a time when the lawyers on both sides and a judge meet to agree upon some of the most basic facts or perhaps disputed elements in order not to waste time on them further down the road.
After this meeting, the case moves forward into...
Discovery
Discovery — a crucial time of fact-finding — is at the heart of civil litigation. Many cases are settled along the way here while a few may be mediated and some are dropped. Deposition, which occurs during discovery, is a key moment for many physician-defendants as it often functions as a fulcrum upon which the outcome of the lawsuit will rest. (Because that is so, I created an online CME course -- Deposition Magic. See below for a special discount)
Pre-Trial Meeting
Only ~10% of medical malpractice cases in the United States actually progress to trial. The other 90% are resolved in one way or another before ever getting there.
If a case appears to be headed in the direction of trial, a pre-trial meeting involving lawyers and a judge will occur. They will attempt to resolve matters to the degree that they can with the hope of making the trial as efficient a process as possible.
Trial
We won’t dive into details of the process of a trial here. Suffice it to say that a medical malpractice trial in the United States entails a judge, a jury, and a boatload of stress. In a future post, I’ll dive into that topic more deeply.
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