Television courtroom dramas have been popular almost as long as television has been around, and for many people, these shows offer their only glimpse into the legal system. When they find themselves in a real-life legal contest, people are often surprised at how slowly things can move. Of course, nobody expects their legal issue to be neatly wrapped up in an hour like it is on TV, but they often have no real basis for what they should expect. We thought it might be helpful to give a general overview of the Oregon medical malpractice process for those who are thinking about suing for medical malpractice.
The first step in any medical malpractice claim is sitting down and speaking with an experienced medical malpractice attorney. These cases are complex and challenging, and not something an injured person should handle without skilled legal help. Consultations with medical malpractice attorneys in our office are complimentary, so there is no financial downside to reviewing the facts of your situation with an attorney.
Unfortunately, not every bad medical outcome means that there was malpractice or that there is a case worth pursuing. If that’s the case in your situation, it’s better to know for certain rather than to wonder later if you should have tried to file a claim. However, if a knowledgeable attorney feels that you do have a viable case, they will start the process of building that case.
Attorneys almost always take medical malpractice cases on a contingency fee basis. That means the client doesn’t have to pay legal fees up front; the attorney takes a percentage of the recovery if they win a verdict or settlement for the client. This allows the client to pursue a claim even if they are in a difficult financial situation. Any costs advanced by the attorney (such as fees for expert witnesses) are also repaid out of any financial recovery.
Once you and the attorney have agreed to work together, your attorney will begin gathering evidence, including your medical records, in support of your case. After reviewing your records, conducting a thorough investigation, and likely consulting with experts, the attorney will file a lawsuit in the Oregon county in which the alleged malpractice occurred. The defendant(s) will be served with notice that there is a lawsuit against them.
Once the defendant has been served with notice of the lawsuit, they will have an opportunity to respond to the allegations in the complaint drafted by your attorney. Unsurprisingly, defendants in a medical malpractice case typically deny allegations that they violated the standard of care or otherwise acted improperly. The defendant(s) may also try to have the case dismissed altogether.
The next phase of the lawsuit is called “discovery.” This is when you and the professionals and/or facilities you are accusing of malpractice can seek information from each other. The attorneys may take depositions (recorded interviews taken under oath) of the opposing parties or request documentation that the other side plans to use to support their claim.
Medical malpractice cases turn on the facts, meaning that each side works to establish facts that will prove (or disprove) elements of the case. For instance, it won’t matter how serious or disabling your injuries were if your attorney cannot prove that your doctor violated the applicable standard of care in treating you.
After discovery has been conducted, plaintiffs in an Oregon medical malpractice case must generally obtain a written opinion from a qualified healthcare professional as to whether the provider(s) being sued failed to uphold the standard of care.
Even with a favorable opinion at this stage, the case cannot proceed to trial. Parties to a medical malpractice lawsuit in Oregon must go through mandatory mediation. Mediation is a form of alternative dispute resolution (ADR). During mediation, the parties and their attorneys are encouraged to reach settlement through their meetings with an impartial, third-party mediator who does not rule on the case, but tries to get the parties to resolve their dispute before a trial becomes necessary. If the parties cannot reach agreement through mediation, the case must go to trial.
Most medical malpractice cases do reach settlement before going to trial. However, medical malpractice cases are more likely to go to trial than many other types of lawsuits. There are a number of reasons for this, but one of the primary ones is professional reputation. Settling a malpractice claim can affect a healthcare provider’s standing in the medical community and their relationships with insurers, and they are willing to fight to defend their interests.
Another reason that medical malpractice cases are less likely to settle is the high stakes of these cases. Patients who have suffered a severe injury are often unwilling to accept a modest settlement just to have the case over with, especially if the injury has changed their lives forever.
Even after a trial, the case may not be over if either side feels that the trial court committed an error in the case. Either the plaintiff (the injured party) or the defendant may appeal the decision, a process that can add many months to the total duration of the case.
Between the initial investigation phase, discovery, settlement negotiations, trial, and appeals, a medical malpractice case can take years to resolve. That doesn’t mean it’s not worth it to file a case. It does mean that if you have a medical malpractice claim, you should work with an attorney who regularly handles these cases.
An experienced attorney will have the knowledge to properly evaluate your case and keep you from wasting your time with a claim that is unlikely to yield the results you need. If you have a valid claim, a skilled medical malpractice attorney will be able to avoid unnecessary delays in the case and work toward a quicker, more favorable settlement.
However, since these cases are less likely to settle than other types of injury cases, it is critically important to have an attorney who has actually tried numerous medical malpractice cases. It benefits no one to build a case for months or years only to have it fail at the trial stage.
To learn more about what to expect in a medical malpractice case, contact The Fraser Law Firm P.C. to schedule a consultation.
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