If you or a loved one think you may have been harmed by a healthcare provider’s negligence, the first step you should take is to contact a New York medical malpractice attorney. Most attorneys give free consultations; if they do not, STAY AWAY! Here are John H. Fisher Malpractice Law, we give free consultations and will advise how to protect your rights are no cost.
Once you have obtain counsel, your attorney will gather all of your relevant medical records. The records will be reviewed and assessed by counsel. If counsel believes there may be a case, the medical records needs to be sent to an expert medical professional in the same field and specialty as the defendant or defendants. If the expert finds there is a reasonable probability medical malpractice was committed, the expert will give you a certificate of merit and your attorney can commence your case.
To commence a medical malpractice case, your attorney will draft a summons and complaint. The summons requires the defendant or defendants to answer and appear in the action. The complaint sets forth the allegations of negligence and the cause of actions (medical malpractice and negligence). The summons and complaint needs to be served on the defendant or defendants.
Once served, the defendant or defendants have a certain amount of time to respond based on how the summons and complaint was served; either 20 days or 30 days. The defendant or defendants will respond with either an answer, which responds to the allegations in the complaint, or with a pre-answer motion to dismiss, which seeks to dismiss the matter for some reason.
When the defendant or defendants serve the answer, the will also serve combined disclosure demands and a demand for a bill of particulars. These documents kick off the disclosure phase of the lawsuit. During this phase, the parties exchange documents amplifying the allegations in the complaint and the defenses in the answer. There is also an exchange of evidence, such as the medical records.
Once all of the paper disclosure is complete, there are depositions. Depositions are where a party’s attorney gets to ask questions of the other opposing party. The questions and answers are recorded by a stenographer, and are sworn testimony.
Once depositions are complete, there may be additional requests for paper disclosure based on the testimony of the deposition. Also after depositions there may be a defense medical examination, wherein the defendant’s chosen physician will exchange the plaintiff and the plaintiff’s alleged injuries. The physician will issue a report.
After all of the disclosure process is complete, either party (usually the plaintiff) will file and serve a note of issue and certificate of readiness. These two documents tell the court that the case is ready for trial. Filing these documents will trigger a series of conferences and new deadlines.
There will be a preliminary conference, which will help narrow some of the issues in the case. Either party may file dispositive motions which means a party will ask the court for an order granting summary judgment for their side. Summary judgment is judgment on the paper, meaning there are no questions of fact required for a jury; everything can be established by law on the papers.
Once dispositive motions are complete, there will be settlement conferences right before the trial. There are also motions in limine, which are motions seeking to preclude or address issues regarding evidence during the trial. Then there is the trial, either in front of a jury or in front of a judge (bench trial).
After the verdict, there can be several post-trial motions, including to reverse the verdict, raise or lower the award, or for other relief like sealing the record. There can also be an appeal, which would be asking the higher court to reverse the decision. If the appeal is denied, it may be appealed to the highest court in certain circumstances or with permission from the appellate court or the highest court; this is rare.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.