How do I know if I have a lawsuit against a hospital, doctor or other healthcare provider?

Unless you are a lawyer or a physician, it would likely be very difficult for you to know whether you have a potential lawsuit against a health care provider. You may suspect you do; however, the only way this can be determined is by review of all relevant facts, medical records and obtaining expert review of your case.



How long do I have to file a medical malpractice lawsuit?

The time by which you must file a lawsuit is known as the statute of limitations (SOL). The SOL for bringing a medical negligence case varies from state to state. Generally speaking, for example, you have three (3) years in which to file a malpractice lawsuit in Maryland and the District of Columbia. In some states, it can much less than that. You should consult with a lawyer who practices in your state to determine what the SOL is in your state.

Even with the same state (again - for example - the District of Columbia), there is a different SOL for a survival action and a wrongful death action. A survival action (that which the decedent could have brought had he or she survived) is three (3) years in the District of Columbia; whereas, the wrongful death SOL is one (1) year. In Maryland, there is a three (3) year statute of limitations as to both actions. States can vary; therefore, you need to consult a lawyer, who specialized in medical malpractice litigation, to determine the SOL (or different SOL’s) that may be applicable to your case. I would stress – do not wait to consult a lawyer. As you will see, the investigation phase can take months to complete. Many law firms will not agree to take your case if it appears the SOL is about to run. No lawyer will take your case if the SOL has run.

In some circumstances, you may have an action for battery (unlawful touching). The SOL for that cause of action can be less than three years and often is less. For example, in Maryland, the SOL for battery is one (1) year.

The SOL can be extended under certain circumstances (e.g. minority, incapacity, the “discovery rule,” and matters such as fraud). It is very important that you consult a lawyer in a timely fashion in order to make a determination of what the SOL is for any potential claim you may have. If the SOL runs before you file your lawsuit, you may be barred from ever pursuing that action.



How much does it cost to hire a lawyer to represent me in a medical malpractice lawsuit?

Different fee/retainer agreements exist. Many law firms (including ours) offer what is known as a contingency fee agreement. Essentially, this means that the fee is contingent on whether or not you recover monetary damages. If you do not recover, there is no fee. If you do recover monetary damages through settlement or judgment, then you would be agreeing to pay a percentage of whatever you recover as your legal fee. These percentages vary. You need to carefully review the fee agreement before you sign it so that you understand exactly what the fee agreement is you are signing.



What about the costs of investigation and the lawsuit, if one is filed on my behalf?

Once again, fee agreements can vary from firm to firm on the issue of costs. Some firms, including ours, will require reimbursement of all costs if you are successful in recovering monetary damages. Other firms may charge you for the costs incurred even if your case is rejected after investigation or even if you are not successful in recovering damages. You should fully understand what your obligations are for payment of costs before you sign any fee agreement. Keep in mind that “costs” in medical malpractice cases can be very high. They can easily be tens of thousands of dollars and in some cases can exceed one hundred thousand dollars. Medical malpractice cases are very expensive to pursue.



What are some of the typical “costs” involved in medical malpractice cases?

Probably the largest cost is for expert witnesses. In the vast majority of malpractice cases, your lawyer will need to hire one or more (typically more) expert witnesses. Experts typically charge hundreds of dollars an hour for their services. Other “typical” costs are items such as filing fees, deposition costs, travel expenses, long distance charges, transcript charges, copying charges and the like. The number of experts needed, depositions costs, etc. can be and often are related to the complexity of your case. You should discuss this with the lawyer with whom you meet so that you have some rough idea of what the costs might be in your case if your claim is found to be meritorious.



What would have to be proven to be successful in a medical malpractice case?

While there are different elements to what is required, the “typical” malpractice case requires that you prove the following (1) the standard of care; (2) a breach of that standard of care by the healthcare provider(s) at fault; (3) a causal connection between that breach of the standard of care and (4) the damages you claim.



What is meant by the term “standard of care”?

This term is generally defined as follows: what a reasonably prudent physician (or hospital, or nurse, or any other type of healthcare provider) should do under the same or similar circumstances in treating you. This element of a malpractice case usually requires expert testimony to establish what the standard of care is and to establish that the doctor (or hospital, etc.) has violated (i.e. not met) the standard of care. Any matter that an ordinary lay person would not know - such as the standard of care and causation - requires expert testimony for you to prove your case.



I’ve heard about “caps” on damages in medical malpractice cases, what does this mean?

Caps are “limits” on the damages you can recover. In some jurisdictions, there are no caps at all. In some, there are caps on all damages. In other states/jurisdictions, there is a cap on what is known as non-economic damages (e.g. pain and suffering, humiliation, disfigurement, loss of consortium, grief, mental anguish, etc.). For example, there are no caps on damages at the present time in the District of Columbia. In Maryland, there is a cap (limit) on non-economic damages. The amount of the cap varies depending on the year that the malpractice was committed. While I am not licensed in Virginia, I am aware that in the Commonwealth of Virginia (where I have been specially admitted to represent some clients on occasion), there is an overall cap on all damages, which varies depending on the year of your case.

You should ask the lawyer you are considering hiring about “caps” and how they might affect your case and your possible recovery if you are successful in recovering monetary damages.



How do I go about getting the medical records needed for my case?

If the case is about a living person’s care, that person will need to sign a medical release of information authorization form (HIPAA). Sometimes hospitals will require that you sign a HIPAA form approved by them, not just a general medical authorization for release of information form. Your lawyer will know which hospitals have such a requirement.



What should I bring to my initial meeting with a lawyer?

You should bring all information you have about your case. You should not decide what information you think is important or relevant. If you have medical records, you should bring those as well. I would suggest you also bring the following information: (1) the name, address and contact information of your treating physicians; (2) any notes you may have kept regarding the care; (3) any correspondence the healthcare provider (e.g. doctor, hospital, etc.) may have sent you or you sent to them; (4) in the case of death, the death certificate, the autopsy report if you have one, any documents regarding appointment of an Executor or Personal Representative for the Estate, any estate papers; (5) (we like to see) some photographs of the decedent (just so we can see the person we are talking about); and (6) any information that relates to your potential case - e.g. medical insurance, letters from the health insurer, Medicare, Medicaid, etc.

I also strongly suggest that you prepare a list of any questions you may have about the case, fee agreements, the legal process, etc. You will get much more out of your meeting if you are prepared. A lawyer should be willing and able to answer your questions. Keep in mind, that the vast majority of lawyers are not physicians; they will not be able to tell you if you have a case. They should be able, however, to tell you generally what they believe the issues to be and what they intend to do to investigate whether you do have a case worth investigating.



What does an “investigation” of a medical malpractice case consist of and how long does it take to do?

Generally speaking, your medical records that are relevant to determining if you have a case must be collected. When necessary, this will include any studies that were done during your care. This can be a very long process. Many times, getting all the necessary records can be a difficult and time-consuming task. While they are supposed to be compliant and timely, healthcare providers may be very slow to respond to record requests.

Once the records, films, studies have been collected, these will often be reviewed “in house” by medical specialists working with the firm. For instance, we have a team of medical specialists, who routinely review these records and discuss the progress of the investigation with our lawyers. At times, depending on the case, records may be sent directly to outside medical experts. Even when “in house” investigations lead to the belief that a valid case exists, these must be reviewed by specialists in the area of medicine that is under investigation (e.g. obstetrics, neurosurgery, radiology, etc.).

Generally speaking, we estimate for our clients that this initial process can take somewhere in the range of three (3) to six (6) months to complete. This can be shorter but too many times is longer. Why longer? If there is difficulty getting all the needed medical records, if it takes more than one expert review - basically, matters beyond the control of the lawyer. That being said, the three (3) to six (6) month estimate is reasonably accurate.



How will I know how the investigation is going?

We generally like to advise our clients at least once a month how the investigation is proceeding. We often do this by email (or correspondence). If circumstances warrant more frequent contact, then that is what we do.

At the end of the investigation, we will then advise the client whether we believe they have a valid case to pursue. If we decline to go further, we always provide this notice in writing. If we believe it is a case that is meritorious, then we advise the client(s) of our decision as well.

There is no guess work about how we decide to proceed.



What happens after the investigation if my case is believed to be meritorious?

The necessary pleadings, notices, etc. are prepared by the lawyer. These are then reviewed with the client for accuracy. Depending on the jurisdiction, the case is then filed. Depending on the jurisdiction, it may be filed directly in court, or, in states such as Maryland that has a mandatory arbitration statute, the case is first filed in an administrative office that handles such matters before it can be sent to the court. This is a process that your lawyer should explain to you if your case would be pending in a state/jurisdiction that has laws such as mandatory arbitration.

By way of example, Maryland had a mandatory arbitration statute; the District of Columbia does not. Your attorney should be able to explain exactly what this means as far as how your case progresses. Different states have different requirements. Again - your lawyer should be able to explain the details to you of how this may affect your case.



What is meant by the “discovery phase” of a case?

Discovery is exactly what the terms denotes: you get to discover facts that may be known to your adversary - with limitations and within reason. Generally speaking, this might include written forms of discovery (interrogatories - written questions; requests for production of documents, inspections, requests for admission, etc.). It is during this phase of the case that depositions are taken as well. A deposition is when the person being deposed (i.e. asked questions by the opponent) is placed under oath and asked questions relevant to the case. Your attorney will prepare you for the deposition at the appropriate time and will be present to represent you during that process.

The “discovery phase” of a case takes place (except in rare situations) between the time the case is filed and the time it goes to trial.

How often to medical malpractice cases settle before going to trial?

The short answer: many times but not always. Because of their complexity and sometimes simply because the healthcare providers do not like to readily admit fault, malpractice cases generally take longer to resolve than - say - automobile accident cases. If the case is properly investigated and is shown to be meritorious during the pre-trial phase (such as during or after discovery) , many of these cases settle out of court. Settlement can also occur during or after a trial. In many jurisdictions, the law calls for mandatory mediation. Mediation is when all the parties and their lawyers meet with a neutral person, who is experienced in these types of cases, to see if a case can be resolved/settled before going to trial. This mediation usually occurs after the discovery phase and prior to trial.

Some jurisdictions have mandatory early mediation (e.g. the District of Columbia). While some cases settle early in the process - even before the discovery phase - this is (unfortunately) the exception rather than the rule.



If the case doesn’t settle before trial, what can I expect?

Each case varies tremendously; however, as a general rule, you will be advised by your lawyer how long he/she believes the case will take to try. This is important since you will be required to be present throughout the trial. This requirement is imposed by the lawyers, not necessarily the court. It is very important that you make arrangements to be present throughout the trial. If you have serious scheduling issues, you should discuss this candidly with your lawyer.

Again, generally speaking, because of their complexity and the number of witnesses called to testify, medical malpractice cases normally take many days to try to conclusion. I have been involved in many cases that have taken weeks to try. Your attorney can give you better guidance as the case progresses and he/she has a better idea of how long your case will take to try.



Who decides my case and must it be a unanimous decision?

When permitted by law (which is usually the case), your case will be decided by a jury. In many, but not all, jurisdictions, the jury’s verdict must be unanimous. Your lawyer can advise you if your case will be brought in such a “unanimous verdict” jurisdiction.



Can either side take an appeal of the verdict?

Again, this varies from jurisdiction to jurisdiction. In Maryland and the District of Columbia, parties have a right of appeal. In others, such as the Commonwealth of Virginia, for example, a party has to petition the appellate court to have an appeal heard; there is no right to have an appeal argued and decided.



How long do appeals take?

This varies widely. I have been in cases where the appeals process has taken only a few months. I have been involved in other cases where it has taken years to have the appeal heard and decided. It is - unfortunately - somewhat unpredictable.



What are some other things I should be aware of if I am thinking about contacting a lawyer to pursue a case of medical negligence/malpractice?

As you can see, there are many issues involving these cases that only a lawyer who does medical malpractice cases can answer. We have tried to give you an overview of some of the key elements of what it takes to prove a case of medical negligence and the process that is involved to investigate, file and go to trial in such cases. No FAQ can answer all the questions you may have. You should make a list of any questions you do have and discuss them with a lawyer - again I stress - who truly specializes in this area of the law. You are also welcome to visit our blog. We try to address some of these and other issues from time to time. We also hope to make available in the near future an eBook, which will discuss these and other related issues in greater detail. If you have any questions and your case is in the jurisdictions in which we practice (the District of Columbia and Maryland), feel free to contact us. We would be happy to discuss your matter further.