Making a successful medical malpractice claim typically means showing (1) that the doctor and possibly the hospital provided sub-standard medical care (“liability”), and (2) the extent of the resulting injuries, lost income, pain and suffering, and other losses ("damages"). But how long will this process take?
While most personal injury claims can be resolved at any point between the time of the injury and the moment a judge or jury renders a verdict at the conclusion of a trial, resolution of medical malpractice claims typically takes longer. Let’s take a look at some possibilities of when these claims are most likely to be resolved.
Settlement May Occur Before a Lawsuit Is Filed
The malpractice claims most likely to be resolved without ever filing a lawsuit –- that is, at “early settlement” -- include those in which all parties fundamentally agree about:
- what happened (what the health care provider did wrong), and
- the resulting harm (exactly how, and to what extent, the patient was injured).
It's important to note that this kind of “clear liability” is relatively uncommon in medical malpractice cases. And even where fault is clear, the claim still must be supported by proper evidence, including:
- written statements and reports of treating physicians and medical experts
- treatment records
- photos, x-rays, MRIs, or other images of the injuries
- medical bills, and
- proof of lost earnings for any work absences and any other losses.
If there really is nothing to argue about in court, that usually becomes clear within the first 30 to 90 days after discovery of the malpractice.
However, a number of factors still can make early settlement of malpractice claims difficult, including:
- the medical and legal complexity of the issues
- reluctance of medical malpractice insurance companies to settle
- insured doctors often have the right to disapprove settlement because public reports of malpractice settlements affect their professional reputations, and
- mandatory arbitration agreements required by certain HMO health insurers may keep their members from filing lawsuits; you may be required to submit any medical malpractice claim to arbitration rather than taking your case to court, in other words.
Discovery and Motions
Assuming no arbitration agreement exists and a medical malpractice lawsuit is filed, the parties must adhere to specific timelines for gathering information that could lead to evidence at trial -- documents, sworn testimony of parties and witnesses (depositions), written questions and answers between the parties (interrogatories) -- during the “discovery” phase of the case. During this phase, the parties get a clearer picture of how the injuries happened and the nature and extent of other losses caused by the malpractice.
For example, if it turns out that the injured patient (the “plaintiff”) was properly advised of certain risks associated with a procedure, and that procedure was performed in line with the applicable medical standard of care, the plaintiff's case may weaken considerably.
The discovery phase can last up to 12 months following the lawsuit’s filing. After discovery, the defendant health care provider may seek to have the case dismissed by various formal motions to the court, such as a motion to dismiss or a motion for summary judgment.
Arbitration and Mediation
If an arbitration agreement precludes filing a medical malpractice lawsuit, the injured patient must present the malpractice claim at an arbitration proceeding, which is a form of “alternative dispute resolution” (ADR). The process works very much like court proceedings, including a discovery phase, with each side presenting witnesses and other evidence at a hearing.
Courts usually accept arbitration decisions. The entire process usually is designed to resolve the case within 18 months after the injured person initiates arbitration.
If a lawsuit has been filed, then shortly after discovery is completed, most courts schedule the parties for what is called “mediation,” a less formal ADR process. A neutral third party “mediator” helps the parties understand the most likely outcome if the case goes to trial -- how a judge or jury probably will decide and tries to guide them toward settlement.
The mediation process itself may last between a few hours and a couple of days. If successful, the claim may be resolved and the lawsuit dismissed within one to two years after the underlying malpractice.
Like most personal injury cases, very few medical malpractice claims reach the trial stage after all other attempts at resolution have failed. Trial is expensive and time-consuming, and the outcome is uncertain. Parties often can wait as long as two years or more before their medical malpractice case gets to trial.