Understanding Medical Malpractice Claims: From a Client’s Perspective*

             It’s important for clients to understand that medical malpractice claims, also known as professional negligence claims, against health care providers are complex and initially require meticulous investigation and review by medical expert(s). The review process must determine whether or not there is compelling evidence of medical malpractice. Medical malpractice, or professional negligence, meaning a lack of reasonable care by a professional health care provider, is based on evidence proving whether or not the defendant’s act or omission in diagnosis or treatment fell below or met the appropriate and accepted standards of care for the specialty involved, and, if not, whether the alleged departure was a substantial factor in causing injury or harm to the patient. Further assessment is necessary to determine if the alleged injuries, harms and losses are serious, disabling and permanent in nature and effect. If the answer to all these questions is yes, then the litigation process may commence. Except under certain limited circumstances, a lawyer cannot properly commence a medical malpractice action without the support of a positive medical expert review by a licensed physician certifying that the case has merit. 

            So, what is the investigation process, how much does it cost and how long does it take to determine if you, the client, have a case? The first step we take is to conduct a detailed interview (referred to by our office as intake) of the client to obtain all pertinent information, including facts, identity of witnesses and available documentation and medical records relevant to the allegations of medical negligence, injuries and damages. In most instances, the client does not have available all relevant medical records necessary to evaluate the claims. However, in many cases, we are able to determine the potential merits of the claim, based on the initial detailed client interview, and we will advise the client, at that point, if we do not believe the claim has sufficient merit or that we are not able to further proceed due to other circumstances such as insufficient damages or injuries or expiration of the statute of limitations. In this instance, the client will be informed of our decision and advised that she/he has the right to seek a second legal opinion. If, at the intake, we believe the claim has sufficient merit, we will request and have the client sign authorizations, together with limited power of attorney forms, so that we can retrieve all the relevant medical records for review. In many cases, this process will be facilitated if the client has already obtained their medical records and X-rays, which are most readily available electronically through Internet access to patient portals or smartphone applications (see my article published on our website explaining how, pursuant to federal laws, clients may obtain quick access to their electronic medical records online at little or no cost). If we need to send for your medical records, depending upon the number of health care providers and hospitals we communicate with, the medical retrieval process can take at least several months, possibly longer. 

            Once the relevant medical records are obtained, our highly experienced attorneys and staff will review them and consult with the appropriate nursing and medical experts to assist in the analysis of your records and the issues presented. We take great pride in conducting a thorough, rigorous and meticulous review process so that we learn not only the strengths of your claims, but the potential defenses to be raised and how to best respond to defeat the excuses we anticipate will be raised by the defense. We will gather the evidence in support of your claims so that we can determine how best to present your case. Ultimately, our decisions about the case’s merits are guided by the opinions of the medical experts who must determine whether or not there likely was medical malpractice or negligence that was a substantial factor in causing your injuries. Depending upon the number of medical experts consulted, this process can also take several months or more to complete. So, you’re wondering: what’s all this work going to cost me? The answer is: nothing up front. If we decide to proceed to investigate and prosecute your case, our law firm has the wherewithal and resources to pay all necessary and reasonable disbursements throughout the litigation of your lawsuit, pursuant to our contingency fee retainer contract. This means that, if we do not commence a lawsuit or do not receive a settlement or recovery, you are not responsible for paying any legal fees, and we will not charge you back to recover for our disbursements. If we recommend litigation and obtain a settlement or recovery after trial — which is likely, as we have demonstrated a proven track record of successful outcomes — we will receive back our disbursements paid from the gross recovery and a percentage as a legal fee based on a sliding scale, which typically will not exceed 30% of the net recovery, unless the court allows more under extraordinary circumstances. Our retainer contract fully complies with New York’s judiciary law and professional code of ethics. In cases involving children (called infants by law if under age 18) or wrongful death actions, all settlements or recoveries must first be approved by the court, including legal fees and disbursements, as well as any medical liens such as CMS Medicare or Medicaid. Our law firm has achieved great success in part because of our careful case selection and meticulous preparation which enables us to choose cases based solely on merit and we will decline to prosecute cases in which successful outcomes are not likely. We at Duffy & Duffy are prepared to win your case before ever stepping into the courtroom. We take great pride in what we do and in serving our clients’ needs to the best of our abilities. We get results!

            Most clients are not familiar with the litigation process and frequently ask how long it will take and if they are required to participate. Medical malpractice cases are considered complex litigation requiring the skills and experience of attorneys, whether representing plaintiffs or defendants, who concentrate their practice in this area of law. The overwhelming majority of medical malpractice cases take years to prosecute before reaching the finish line which usually culminates in a settlement or trial. Then there is also the possibility of post-trial motions and appeals delaying the final outcome. So, understanding how the process works and your participation as a client will help you to have realistic and reasonable expectations throughout the litigation of your case. Although we cannot make any guarantees, as prior results cannot guarantee future success, the good news for our clients is that the vast majority of our cases reach a successful settlement without ever having to go through a jury trial. This is because our law firm diligently prepares every case as if it were going to proceed to trial and the defense bar is well aware of our excellent reputation and proven track record of success and ability to successfully try every case we prosecute to conclusion. We have the necessary resources to pay for all litigation expenses, trial preparation and medical experts so as to present the evidence in your case in the strongest and most effective way to achieve the desired outcome. Our attorneys and staff are fearless advocates for our clients while conducting ourselves in accord with the ethics required of our distinguished profession and prepared to meet the challenges and unknowns that arise in every case. 

            Why does it take years to successfully prosecute a medical malpractice case? Well, let’s discuss the various steps involved with the prosecution of your case, as well as your participation as a client. The first step is the filing of the summons and complaint, which is the commencement of the lawsuit. This is called the pleading stage. The complaint, which includes a certificate of merit verifying that the case was reviewed by a duly licensed physician, outlines the general allegations and causes of action (the basis for the claims), as well as the injuries allegedly suffered. The summons and complaint must be served on each of the named defendants, who then submit the lawsuit papers to their representatives and insurance companies to review and file answers to the allegations in the complaint. Together with the answers, the defendants serve demands for bills of particulars, medical authorizations and discovery to find out more specific information about you and the allegations in the complaint and enable the defense firm to obtain all medical records material and necessary to prepare for the defense of the case. At this stage, we will already have in hand your power of attorney form authorizing us to deliver authorizations to release all relevant medical records to the defense. We will prepare and serve the bill of particulars in response to each of the defendant’s demands, together with discovery responses and requests that the court schedule a preliminary conference as required by law to schedule all pretrial proceedings and examinations before trial (called depositions). In preparing the bill of particulars detailing your claims and injuries, we may require you to update your information regarding your medical condition and care and treatment for your injuries. We will also be looking into whether there exist any medical liens by Medicare, Medicaid or self-insured ERISA plans for payment of your medical bills causally related to the medical malpractice in question. By law, all medical liens and subrogation claims by Medicare and Medicaid, as well as self-funded ERISA plans, must be satisfied and paid from the client’s share of any settlement or recovery at the conclusion of the case. We must correspond with the lienholders to obtain all itemized payments that are subject to their lien/claim and release this information to the defense as all parties are ultimately responsible for the satisfaction of certain liens such as Medicare or Medicare Advantage plans. So, based on our experience and depending upon the venue (location) of your case and the number of defendants, it can take anywhere from six months to one year from the date of filing of the action until we reach the preliminary conference stage.

             What happens at the preliminary conference stage? All the attorneys are required to confer before the conference to discuss scheduling of pretrial proceedings, including depositions of all parties and witnesses (known as EBTs), exchange of discovery materials such as medical and hospital records and other necessary documents and the possibility of settlement. It is rare for any medical malpractice case to settle at this early stage before EBTs are held. The main reason is that, at this early stage, each party to the action is entitled to learn what evidence and testimony will be offered in support of and in defense of the claims. This is the primary function of discovery: to seek evidence and learn about the basis for the claims and defenses set forth in the pleadings and verified bills of particulars. The judge assigned to the case typically has her/his own rules governing pretrial discovery and will — either personally or by assigned court personnel — participate in the preliminary conference. The general timetable usually gives the parties 12 to 18 months, depending on the complexity of the individual case to complete pretrial discovery proceedings. During the discovery phase, the court may conduct compliance conferences to determine the status of the case and resolve any discovery disputes. However, the new court rules effective February 1, 2021 requires the parties to confer in order to resolve any discovery disputes prior to seeking court intervention. If these disputes cannot be resolved by the parties themselves, a motion may be filed, with the court’s permission (if necessary), to request the court to decide the dispute on written papers. Schedules are set by the court for motion practice and, generally, a decision must be made within 60 days of submission of all papers. The motion practice can easily delay a case for three to six months.

             How are you involved with your case during the discovery phase? We will likely communicate with you as discovery issues arise regarding the release of medical records, lien information and other documentation. However, the most important participation you have will occur when depositions of the parties are held. The general purpose of the deposition or pretrial testimony taken before a court reporter under oath is to find out what each side knows about the facts and issues in the case and to evaluate the credibility of the other side’s witness as if she/he were going to testify in open court before a jury. In evaluating the plaintiff’s credibility, the defense looks at your appearance, manner of dress and how you respond to questions, whether in a direct forthright manner or evasively. Moreover, the defense will evaluate the substance of your testimony to determine if it supports the underlying claims and alleged injuries. Does the plaintiff’s testimony contradict the information documented in medical and hospital records? This includes information written or provided by patients on medical intake forms provided to patients by health care providers describing a patient’s medical history and presenting signs, symptoms and complaints. In general, the more credibly the plaintiff testifies, the more likely the case will be successfully settled pretrial. If the defense reports to the insurance company that the Plaintiff did not testify credibly then it will be more difficult to reach a pretrial settlement, unless the underlying facts or medical opinions are not strongly contested. So, you can see that preparing for your deposition testimony is critically important. To begin with, you will be meeting — either in person or by videoconference (in view of COVID 19) — with one of our experienced attorneys working on your case to review your case and your testimony. All conversations between attorney and client are privileged so, as long as no third parties are present, you can feel secure and don’t have to worry that what you say in preparation will be used by anyone else against you. Under the new court rules, your deposition testimony can be expected to last no more than seven hours, unless an extension is agreed upon or directed by the court.

             Likewise, the deposition testimony of the individual defendants and their witnesses are critically important to proving your case and determining the prospects for settlement or trial. Our attorneys meticulously prepare for depositions as if the case were going to trial. Your testimony and the medical records are reviewed, as well as expert opinions regarding the issues and applicable standards of care and treatment. Our goals are to establish the uncontroverted and disputed facts and elicit testimony to prove violations of the applicable standards of care or evidence of negligence that were a cause of your injuries — in other words, possible admissions by the defense to help prove your case. The time to complete depositions of all witnesses can take several months or longer, depending again upon the number of witnesses to be deposed. During the deposition phase of your case, there are usually further discovery demands served by all parties based upon information elicited during testimony regarding care and treatment by various health care providers, potential medical liens and other documents and materials relevant to the prosecution or defense of the case. The defense also has the right to designate one or more physicians to examine the plaintiff regarding the claimed injuries and residual complaints related thereto. This is typically referred to as an IME (insurance medical examination) or DME (defense medical examination). So, for example, if you have suffered a serious neurological injury, the defense may designate a neurologist to examine you. If it is an eye injury, then an ophthalmologist may be designated. We, as your attorneys, have the right to have one of our representatives present with you during the entire time of the examination to make sure proper protocols are adhered to and document the events that took place. You will also receive instructions from our office prior to the examination regarding how to prepare for and conduct yourself during the examination. Our representative will be allowed to testify at trial, should serious contradictions arise between what the IME doctor reports and what took place. For example, if the IME doctor testifies that his physical examination took 45 minutes when it actually was five minutes, our representative can testify to this fact. However, it is more the norm in many serious injury cases for the defense not to designate any IME doctor for fear of documenting the plaintiff’s serious injuries, disabilities and residual complaints. In other words, the defense is afraid that its doctors may actually help prove the plaintiff’s case by not contradicting his/her injuries. To summarize, your most important participation in your case before trial is during the depositions of the parties and any IME examinations by defense doctors.

             Once all pretrial discovery is complete, your case can be placed on the trial calendar by filing a note of issue and statement of readiness. Before doing so, the court will hold a certification conference to certify that discovery is complete and approve the filing of calendar papers. In addition, we typically review all discovery and any updated medical records and reports regarding your injuries to determine if further or supplemental bills of particulars need to be served. In many cases when treatment continues during the litigation process, information originally contained in the bill of particulars will need to be updated and supplemented. Medical liens will need to be determined. Medical records and reports will need to be exchanged with all parties. Moreover, medical experts will need to be further consulted to review the deposition testimony and updated medical records to solidify or modify prior opinions given by the experts to make sure their proposed testimony is complete and accurate and supported by credible evidence. This process also involves the selection of medical experts, who will testify during trial or oppose defense motions for summary judgment which are usually filed within 120 days of placing the case on the court’s calendar. Each party is required prior to trial to serve all other parties with expert witness disclosure, setting forth the medical qualifications of the experts without disclosing the expert’s identity and sum and substance of the expert’s proposed testimony so the adverse party knows what experts they will be confronting, should the case proceed to trial.

             Once your case is placed on the trial calendar, it may take up to 15 months, which is standards and goals, before your case is actually reached for trial. However, in the current climate of COVID 19, in-person jury trials have been delayed indefinitely until March 22, 2021, when jury trials have resumed on a limited basis. The current pandemic has caused much delay, making it more difficult to meet standards and goals and achieve desired outcomes and settlements. However, notwithstanding the pandemic, our law firm has continued to achieve great success in settlements and recoveries. This success is attributable to our outstanding attorneys and staff who have the necessary resources to do whatever is necessary to prepare your case for trial. A good settlement is only achieved by hard work and preparation to make sure the case is presented in the strongest possible light and with the best medical experts and evidence available. We also attribute our success to careful case selection to make sure we are investing our time and resources into meritorious cases. As you can see, medical malpractice litigation is complex, time-consuming and very expensive, so case selection is very important to achieving success.

             As alluded to above, once calendar papers are filed, it is not unusual for the defense to file motions seeking summary judgment and dismissal. These motions allow the defense the opportunity to limit issues or defeat claims without a trial while requiring the plaintiff to lay out her/his evidence and expert testimony supporting the case. Because of our intense preparation, we are highly successful in defeating these motions by presenting strong expert affidavits in opposition to the motion raising disputed factual issues requiring a jury trial. Once your case is reached for trial, the actual trial — including jury selection, up to the jury’s decision (called verdict) — may take two to four weeks or longer, depending upon the number of parties and medical experts who will testify. There is always the possibility of settlement at any time during the trial process. Once the jury renders a verdict, either side has the right to file post-trial motions, or appeal from a judgment entered on a jury verdict. Post-trial motions can delay the outcome and entry of judgment by many months. Moreover, each party has the right to appeal a jury verdict and post-trial decision. Appeals typically take from 18 months to two years or more, depending upon the backlog of pending appeals. Therefore, a favorable settlement prior to or during trial is generally the desired outcome.

            What have we learned? Medical malpractice litigation is complicated, lengthy and expensive to prosecute. Success depends upon the skill and experience of the lawyers who practice in this area of law, as well as their available resources to stay the course and win at trial. It is not unusual for out-of-pocket disbursements to exceed $50,000 to $100,000 per case, especially if the case goes to trial. Not many law firms are able to commit the resources necessary to achieve successful results. Remember, the defense, including their insurers, virtually have unlimited monies to fight every case. And all the time we commit to your case is based on a contingency fee retainer, which means we don’t get paid any legal fees unless you recover money. If no recovery, then no fee. There is no collateral to secure payback of our disbursements if your case is not successful. We invest hundreds to thousands of hours in each case. We take all this risk on with no guarantees of success. Why? Because we are committed to our clients’ cause and access to civil justice to recover fair and just compensation for their serious injuries, harms and losses while holding wrongdoers accountable for their negligent medical errors and violations of standards of care and patient safety. By engaging in the litigation process, we believe that holding wrongdoers accountable helps improve patient care and safety for all who live within our community. We hope you will trust your case to the skilled and experienced attorneys and staff at Duffy & Duffy, PLLC. Please call us at 516-394-4200. The initial consultation is always free of charge and you are under no obligation to proceed.

*Alan W. Clark is a trial attorney with over 43 years of experience in medical malpractice litigation and Of Counsel to Duffy & Duffy, PLLC, 1370 R & R Plaza, Uniondale, New York 11556. Mr. Clark is board-certified and recertified in Professional Medical Liability by the American Board of Professional Liability Attorneys. He is also a sustaining member of the American Association for Justice, New York State Trial Lawyers Association, New York State Bar Association, Nassau County Bar Association and a member of the New York Academy of Trial Lawyers. He can be reached at 516-394-4200 or awc@awclaw.com.