Walking Through a Medical Negligence Case

If you or a loved one have suffered from medical negligence, you may be eligible for compensation. Medical malpractice and negligence cases are hard to prove, so there are a lot of steps you should know before diving in.

Find the Right Lawyer

The most important step in any law preceding is to hire the right lawyer. You need someone with experience specifically in medical malpractice and negligence cases. Because these cases are difficult, take time, and require patience and expertise, you want to make sure you have the right person fighting for you.

At McShane and Brady, we value your health and recovery and respect the hurt that you are going through in seeking justice for yourself or a loved one.

Investigation and Review of Medical Records

Before you meet with your lawyer, be sure to assemble your medical records. Bring anything and everything that might affect your case: copies of emails and health reports, test results, bills, prescriptions, etc.

The first thing that your lawyer will do is interview you about your medical condition and medical treatment. Make sure you tell your lawyer the entire story, making sure to include all details. Do not withhold information, especially any that could thwart your chances of success. Honesty is the best policy. Your lawyer's job is to become very familiar with your case, learning everything they need to know about your condition and treatment.

Next, your lawyer will examine all of your medical records and bills related to your potential malpractice case. Let them take the time to assemble all information about you. It may take a few months, but in the long run, it will be better for them to be fully aware of your condition and history so they can examine the lawful validity of your case and build a strong case.

It is important to consistently keep in contact with your lawyer. An expert lawyer should be able to determine early on if you have a weak case and should notify you to that effect.

If you do have the chance for a strong case, your lawyer will investigate further and determine whether you have a legitimate case from a legal standpoint.

Hire a Medical Expert

Should you have a legitimate medical malpractice case, your lawyer will hire an appropriate expert medical witness.

In order for a medical malpractice case to get to trial, you must have a medical expert, usually a lawyer will hire a doctor who practices in the same specialty as the defendant (the person you are suing), to review the medical records and issue an opinion that the defendant was negligent and that the defendant's negligence was a cause of your injuries and damages.

Consider Demand and Negotiating

When you enter into a lawsuit, first determine what you want to get out of it. Make a list of what you ideally hope to win through your lawsuit. Some personal injury cases are settled before a lawsuit is ever filed. In medical malpractice cases, pre-lawsuit settlements are not common, but it can happen. Often, especially in the bigger medical malpractice cases, the doctors' insurance companies are not interested in discussing settlement until after the lawsuit has been filed and they have had a chance to do their pre-trial investigation.

File a Lawsuit

Your lawyer will then file the lawsuit. A lawsuit is generally called a Complaint or a Writ.

Filing a lawsuit puts your case in the queue for trial. Every state's pre-trial procedures are different, but generally, it will take between a year and a half to three years after the lawsuit is filed for a medical malpractice case to get to trial.

File Offer of Proof/Certificate of Merit

Most states require your lawyer to submit an Offer of Proof or an Affidavit of Merit after filing the lawsuit and before pre-trial investigation occurs. The purpose of the Offer of Proof or Certificate of Merit is to ensure that the case is at least arguably a legitimate medical malpractice case. Depending on the individual state's laws, the lawyer must submit either a written opinion of negligence from a doctor or medical expert who has reviewed your medical records or an affidavit from the lawyer affirming that the lawyer has discussed the case with a qualified physician who believes that the plaintiff has a legitimate medical malpractice case.


Once the judge has approved the Offer of Proof or Certificate of Merit, the litigation and discovery begin. During discovery, both parties investigate what their opponent's legal claims and defenses are. They send interrogatories (a fancy word for questions), document requests to each other, and take depositions of all of the relevant witnesses in the case, generally beginning with the plaintiff and defendant (you and the person/entity you are suing).

The discovery process can last a year or more, depending on the court's deadlines and the queue of cases. It often requires both parties going back to court for the judge's assistance. Oftentimes, both parties become frustrated with each other because of problems with response or cooperation in interrogatories or document requests, thus filing motions to compel the other to reveal more information.

Each time, the judge has to hear each side's arguments and then make a decision. It's a tedious cycle that hopefully reveals enough information to move on to mediation and negotiation.

Mediation and Negotiation

Once discovery ends and both parties feel they have all the information they need, talk of settlements arise. Sometimes the lawyers can settle a case just by talking amongst themselves, but, in other cases, they will go to mediation. Mediation is a process in which both clients and both lawyers go in front of a mediator to try to settle the case. Mediation is a civil way of negotiating compensation in an attempt to avoid more legal hassle and expense.


Often mediation works, but, if it does not work, the case is scheduled for trial. A medical malpractice trial can last a week or more. In many states, trials are scheduled for only half a day instead of a full day which doubles the length of a trial.

Know that just because a lawsuit is scheduled for trial does not mean that the trial will actually occur on that date. Trials often get rescheduled because of the judge's schedules. If your medical malpractice trial gets canceled, you should not automatically assume that something inappropriate is happening.

Getting Started

Medical malpractice trials can be exhausting. Hopefully, this article sheds some light on all that it entails. It may seem overwhelming, but McShane and Brady will be with you the whole way through. It may take a while, but getting justice the right way allows you to get the most compensation for your loss. We are more than happy to sit down and talk with you about your case and how we can help. Schedule your free consultation today.

Source: All Law