First Steps in Medical Malpractice Cases

John Yannone, an attorney with Price Benowitz LLP, discusses the intial steps in developing a medical malpractice case.

What are some of the first things you look at in a medical malpractice case?

You work backwards in medical malpractice cases. You look for the damages in the case. Particularly in these kinds of cases, if there isn’t significant injury and damage, it’s going to be very difficult to pursue, because the whole focus is to get the victim of the negligence compensated. There have to be significant damages in order to warrant going through with this type of action, because of all the costs and fees.

So you start backwards to determine the outcome in terms of damages, and then you look at the liability aspect of the case in terms of what they did or didn’t do and whether that rises to the level of negligence, as opposed to falling into the other areas of judgment and known complication or acceptable risk.

That’s how most attorneys look at these cases, [they look at] the resources that are going to have to be brought to bear to pursue the case.

One good thing that we have as the plaintiff is, provided the client comes to us early enough, we have the time on our side to do the proper investigation to vet a case, to really research and investigate and be very sure that we make the right decision with the client, because this is a mutual decision.

If you agree to take a case, you’re on board with the client and everybody understands. If you decide not to take the case, you can explain the basis for the decision to the client so that they understand what the next avenue is for them.

Communication is very important between the attorney, the firm, and the client, regarding what the process is all about, what is going into the decision-making, and what factors are important to that decision-making. All of that is a part of deciding mutually between the client and the attorney whether a case is going to be taken on or not.

How Do You File a Medical Malpractice Claim?

In Maryland, you must file the claim before an arbitration board, so the case originates in Health Claims Arbitration. You file a statement of claim and within 90 days you have to have a certificate of merit from doctors who indicate that it’s a meritorious claim. Then the defense has to file their answers and their certificates.

Either party can then waive out of arbitration, and most of the time the parties do, because if you go all the way through the arbitration process to a conclusion, which is a decision by a three-member panel, either party can appeal. Most of the time cases are waived out of arbitration and go straight to court, because you don’t want to go to the expense twice of all the litigation costs, expert costs, etc., only to have the case appealed by the losing party, which is almost invariably what occurs.

But, the case does need to be initiated within Health Claims Arbitration, whereas in DC you file directly in the Superior Court and go immediately into court to file a claim. The suit is like any other litigation; you have a scheduling order and you have a period to go through discovery on both sides, so there’s written discovery and request for documents. There are depositions and other tools to find out the other side’s position, claims, and defenses.

There are opportunities to try to get cases resolved after that process either by mediation, arbitration, and/or pretrial conferences. If all of that fails, then you get a court date.

That whole process can take a minimum of a year to a year and a half, or longer depending upon how complicated and how busy the courts are where you’re practicing. Most of the time in medical negligence cases it’s going to be a litigation process. There are very few times when the case is going to resolve before suit, or even early in suit. If a case is going to resolve, it usually goes through most of the process, through discovery and up to maybe some of the process with scheduling orders that courts have now, mediations, and pre-trials. There is the opportunity to have a third party involved, to try to bring the two sides together to see if the case can be resolved. If it can’t, then you move on to trial.