Why Does it Take So Long to Litigate These Cases?
The average life of a medical malpractice claim from start to finish is approximately 3-5 years. Why do medical malpractice cases take so long to litigate? There are several answers to this question.
First, a claimant cannot file a lawsuit in a medical malpractice case in without first presenting the claim to a medical review panel. A medical review panel is comprised of an attorney chairman and three physician members who review the patient’s medical records and decide whether the case has merit.
The medical review panel process will waste at least two years in completing. Once the medical review panel renders a decision and regardless of whether the panel believes that malpractice was committed, a patient may then institute a lawsuit in state district court.
The case then enters the “discovery” phase of litigation where depositions, written questions called interrogatories, and exchange of documentation takes place. Most courts will not allow the parties to obtain a trial date on the court’s calendar unless and until all discovery is completed. This process can also last several years.
Medical expert witnesses and treating physicians are busy medical practitioners. Coordinating the busy schedules of these physicians with numerous lawyers can be challenging. This further delays the process.
Once the litigants have completed the discovery phase, they may request a trial date. Because of the crowded nature of most court dockets, a trial date is usually not available prior to 6-12 months from the date it is requested. Moreover, the court’s docket contains many other types of cases which frequently settle so the courts must set several cases for trial on the same date, knowing in advance that most will settle.
If two cases come up at the same time, one must be continued. The litigants are then at least another 6-8 months away from the new trial date. This can happen numerous times. The schedule of the testifying physicians must also be clear so they can appear live at trial to render their testimony.
Because of the complex nature of medical malpractice cases, they take longer to get to trial than most people would care to wait. The patient’s lawyer wants the case to proceed as quickly as possible. Remember, he works on a contingency fee and does not get paid unless and until a recovery is made. He is also spending tremendous sums of money funding the case costs. Rarely is he to blame for the delays in a medical malpractice case.