If you file a medical malpractice lawsuit, there is a good chance you will never have to go to court. Most medical malpractice lawsuits are settled before they get to trial. Even if your case does go to trial, you may be able to avoid an in-court appearance if you are disabled or under medical care. In most situations, your attorney will be able to handle the majority of your case without requiring you to appear in person.
Medical malpractice lawsuits can take a long time to even get to the trial stage. Over the course of a year or more, your attorney will have to make several in-court appearances for hearings and meetings with the judge and other attorneys. Most of the appearances can be handled without you having to come to court. If you have concerns about going to court for a medical malpractice claim, talk to an experienced medical malpractice law firm about your case.
Finding a Lawyer to Appear On Your Behalf
Medical malpractice cases can be more complex than other types of personal injury trials. It is important to talk to an experienced professional if you plan to take your case to court. An experienced medical malpractice attorney will act as an advocate on your behalf. Your attorney can file your case in court, get the required expert reviews and reports, and represent you in any court hearings.
Finding the right lawyer to appear on your behalf in any court proceedings is the first step in making a successful claim for compensation. You should consider several factors before finding the best lawyer for you, including:
Court Hearings Represented By Your Attorney
For the majority of court hearings and appearances, you will not need to go to court. Your lawyer will appear on your behalf and will keep you informed of any developments. A medical malpractice case may require dozens of hearings and meetings before your case ever goes to trial. Most of these appearances will involve just the judge, your attorney, and the lawyers of any other parties to the case.
Hearings may include status updates where the judge wants to make sure the case is progressing and clear up any issues that may be delaying the case. Filing of motions is also common in medical malpractice cases, including discovery motions to compel turning over evidence or respond to requests. The court schedule is often very full, and these meetings are often rescheduled or delayed. This is one of the reasons having an experienced attorney is a benefit, so you do not have to show up to anything that is not absolutely necessary.
One of the reasons it takes so long for a medical malpractice lawsuit to get to trial is because there is a lot of information to review. The lawsuit begins with filing a complaint. After the initial filings are made, the case can proceed to discovery. After extensive discovery, medical experts have to review the relevant medical information and provide an expert report. This may be followed by further pretrial motions, to narrow down the issues. All of this process can take years.
Likely Required Appearances and Discovery
Discovery in a medical malpractice case involves the exchange of information between the parties. The plaintiffs and defendants exchange medical records, employment records, hospital records, interrogatories, depositions, and independent medical examinations. The discovery process can take a long time. Discovery can be even longer when there are lots of doctors, nurses, and health care workers involved. There are often discovery disputes that can further delay the process.
There are parts of discovery where the plaintiff will likely have to appear in person. If you want to avoid any in-person appearances, talk to your lawyer about settling the case or other alternatives to an in-person appearance. The most common aspects of discovery that require the injury victim to be in-person are the:
- Independent medical examination (IME)
Independent Medical Examination (IME)
An independent medical examination is a physical examination in a medical malpractice case to make an objective determination of the patient. An IME is supposed to be conducted by a physician that the patient does not have a medical relationship with because it is supposed to be independent. The IME does not treat the patient and does not require the patient to follow the IME doctor’s findings. It is intended to provide an objective finding of the nature of the patient’s injuries, including mental and physical harm.
As the injury victim, you may be hesitant to undergo a physical examination by a strange doctor. The IME is a very common practice in medical malpractice discovery and your attorney can tell you more about the process. The IME may appear like a very in-depth exam, including physical examination, medical record review, medical history intake, and general evaluation.
In some cases, an IME may not be required. This includes where the patient is deceased, the insurance company policy does not require an IME or the patient is already fully recovered. If you have any other questions about an IME for your medical malpractice lawsuit, talk to your medical malpractice attorney.
Deposition Questions and Answers
A deposition is like a question-and-answer session. Like an interview, the deposition in a medical malpractice case is often conducted in person, with questions asked by the attorneys on one side in the case. For example, your attorney may question, or “depose” the doctor who caused the medical injury. In that situation, the doctor’s attorney would also be present to make any comments on the record and provide legal advice to their client.
If you are the injury victim plaintiff in a medical malpractice lawsuit, you will generally be required to submit to a deposition. This is part of the legal proceeding but generally occurs in an office instead of the court. It can be intimidating to be questioned by the lawyers for the insurance company and hospitals. However, your attorney can help you prepare so you know what to expect.
Don’t worry. You won’t be alone for the deposition. Long before your deposition, your lawyer will explain the process and let you know the types of questions that will be asked and provide guidance. During the deposition, you can stop at any time to take a break, or if you need to talk to your lawyer in private. If your lawyer thinks that any of the questions are inappropriate or the opposition is treating you unfairly, they can step in to protect your rights.
Other Discovery Appearances
In general, an IME and the deposition may be the only time you need to show up in person before a case goes to trial. Interrogatories are written questions that can be filled out with your attorney and there may be no need to do this in front of anyone else. Your lawyer will be able to advise you of any other times you may need to show up in person and provide alternatives.
It is important to remember that your medical record will be of material importance in your malpractice case. This means the insurance company and doctors will have access to your medical records, including sensitive information that may be unrelated to the medical error. For example, if your medical records show sensitive information about your sexual history or drug use history, you should talk to your medical malpractice attorney about any concerns.
There is a possibility that you may be observed in public by the insurance company after filing a claim. The insurance companies may use private investigators to check on the plaintiffs in relation to the alleged injuries. This can also happen with personal injury claims, disability claims, or workers’ compensation injuries.
When defense counsel employs private investigators, the investigators may be looking for information beneficial to their case. An example may be where a plaintiff suffered a medical injury causing severe back pain but the person is later observed in their front yard gardening and carrying heavy bags of soil. This type of evidence could be used to dispute the severity of the patient’s injuries.
Increasingly, investigators review social media for evidence they can use. This includes facebook posts, videos, photos, or even comments that appear to conflict with the patient’s case. It is important to be aware of any social media activity after a medical injury. Talk to your attorney about any concerns you have about social media posts that could harm your case.
Settlement Instead of Trial
The majority of medical malpractices get settled out of court. Almost 90% of medical malpractice cases are settled when the parties have an agreement to release the legal claims in exchange for a certain amount of money. Settlement can happen anywhere during the legal process. An insurance company may even try and offer an amount to settle the incident before the lawsuit is even filed. The closer a case gets to trial, the settlement negotiations increase.
Why would you want to settle the case instead of going to trial? There are a few reasons it may be in your best interests to settle the claim. A settlement agreement is a guarantee of how much you will receive for your injury. With a jury trial, there is always some uncertainty. Even if it appears you have a strong case, the jury may fail to find the doctor was responsible, which could leave you without any recovery.
A jury trial can be a long and stressful process. The injury victim or patient’s family may not want to go through the case and have to relive a painful experience all over again. A settlement can avoid the time, expense, and stress of a long trial. Coming to the right settlement amount can help you move on and close a difficult chapter of your life.
How will you know when the settlement offer is right? This is where the experience of a medical malpractice law firm is a major benefit. Lawyers who get results understand the strengths and weaknesses of a case and can let you know what range you may be able to expect for the settlement. Your attorney will also negotiate with the defense attorneys to make sure you get the settlement amount that you are looking for. Your attorney can also offer you specific advice for your individual situation so you can decide when you want to settle the case or take your case to court.
If Your Case Does Go to Trial
If your case does go to trial, you may have an opportunity to appear in court. There are alternatives to appearing in court, including remote appearance. However, in some cases, it may be of your benefit to appear in court.
Alternatives to In-Person Appearances
Not every plaintiff in a medical injury claim has to appear in court. In a wrongful death lawsuit, the injury victim is no longer alive and cannot appear but the case can still move forward to provide compensation to the victim’s estate and family. If the injury victim in a medical malpractice lawsuit is severely injured or disabled, they may require hospitalization or around-the-clock care. It would be difficult to try and make that person show up in person.
There are alternatives to in-person appearances for court hearings. The use of video and teleconferencing equipment has increased in civil courthouses, especially since the COVID-19 pandemic. Because of the coronavirus, many civil courthouses had to conduct hearings and trials remotely. If you are more comfortable making appearances by video or phone, talk to your attorney about alternatives to showing up in court.
When Going to Court Can Help
Injury victims may be reluctant to appear in court. They may not want to go to the trial for several reasons, including anxiety, mental health issues, or they are sensitive about their appearance after a medical error. However, there are many times when going to court can help your case.
There may be no substitute for you telling your story to the jury in person. The jury is made up of average people from your own community. They can be incredibly receptive to your words and empathize with your situation. Testifying in court can help them understand the pain you feel, how you felt victimized by the medical community, and the life-long consequences of the doctor’s mistakes.
If you are going to testify in court, your lawyer will prepare you for the event and will generally help you understand the types of questions that will be asked before you go to court. You can talk to your lawyer about any concerns you have. Having a strong medical malpractice advocate who is there to represent your best interests can be very comforting in the unfamiliar setting of a civil court trial.
Next Steps in a Medical Malpractice Lawsuit
If you have any other questions about when you may need to go to court in a medical malpractice lawsuit, you can get answers from an experienced law firm. Contact experienced trial attorneys who can look at your case, answer your questions, and help you understand your legal options to file a claim against the surgeons, doctors, and hospitals responsible. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.