Step Five: The Fee Agreement
A qualified expert has reviewed your medical records, believes your case has merit and is willing to testify in Court. What happens next? Up to this point, our lawyers with whom you met initially have been investigating your medical malpractice case without entering into a formal fee arrangement. Until we have established that the case has merit and should be put into suit, there is no fee agreement required. Once suit is to be filed, your case will come under court supervision which necessitates putting into writing what our firm is undertaking on your behalf and what our fee will be.
This is the second of three blogs on this topic. Be sure to read Part 1 on the initial call, meeting, medical records review and expert consultation, and next read Part 3 on the medical malpractice trial process.
We represent our clients on what is known as a contingent fee basis. That simply means that you will only owe our firm a fee if our services result in a monetary recovery for your injuries. In most personal injury cases, the usual fee is one third of any amount recovered. Medical malpractice cases are different. Contingent fees in medical malpractice cases are regulated by statute in Massachusetts. The law requires a sliding scale basis: as the amount of the recovery increases, the percentage of the fee that a lawyer can charge is lower. Our firm adheres to the scale set out in the Massachusetts statute. Every detail of the fee arrangement will be fully explained to you before you are asked to sign it. You will also receive a copy of the fee agreement for your records.
Step Six: From Complaint To Ready For Trial
A medical malpractice lawsuit begins with you, the plaintiff, filing a Complaint in court. A Complaint is a legal document which sets out what happened to you as a result of a care provider's negligence. It claims that you are legally entitled to receive damages for those injuries caused by the negligence. Your spouse and children also may have claims against the care provider as a result of your injuries. A deputy sheriff serves the Complaint on the defendant, care provider. The service of the Complaint initiates the care provider's obligation to defend the lawsuit by filing an Answer to it. In the Answer, the defendant care provider will respond to the medical malpractice claims in the Complaint and assert any legal defenses that may be available. After the defendant's answer is filed, the Court schedules a Medical Malpractice Tribunal to evaluate the legal sufficiency of the Plaintiff's claims. A Tribunal is a three-person board composed of a judge, a lawyer and a physician or other health care provider in the same specialty as the defendant. At the Tribunal, we will present an Offer of Proof describing the facts of the case and submitting our expert's report detailing the departures from the standard of care and their causal connection with your injuries. If the Tribunal finds in Plaintiff's favor, the case may proceed without having to post a bond. If not, a bond must be posted before the Plaintiff is allowed to continue.
Step Seven: The Discovery
The next step in the medical malpractice lawsuit is the process known as discovery. Discovery allows each side to learn about their opponent's case prior to trial. We will send written interrogatories or questions to the defendant. The defendant is required to provide answers which will give us information about what the defendant says happened in your case as well. We also will request any written documents or other evidence that may be relevant to proving your malpractice case. You can expect that the defendants in your case will also send written interrogatories and request documents of you as part of the discovery process.
These discovery tools allow us to be prepared for the most important part of discovery, depositions. Depositions are a means of receiving sworn testimony from parties and witnesses who have information about what happened in the case. These witnesses may have been present when the malpractice occurred or have knowledge pertaining to your injuries. The defendant is always deposed as is the plaintiff. The defendant's deposition allows us to hear his or her explanation for the care that was given and allows us to prepare for the defendant's testimony at trial. When your deposition is scheduled we will prepare you for what to expect and be there with you while you are being questioned. Depositions allow the lawyers to learn all about you and, equally important, determine what kind of impression you will make before a jury.
Once Discovery is completed the next step in your medical malpractice case is receiving a trial date from the court. The trial date puts the case on a schedule for final preparation to go before the jury.
Step Eight: Settlement vs. Trial: The Realities Of A Malpractice Case
There are a couple of practical realities about medical malpractice lawsuits that must be understood before the decision to go into a case. First, if you are the patient and your medical malpractice case goes to a jury verdict, the overwhelming odds are that the verdict will not be in your favor . Juries comprise a cross-section of society and our society holds medical professionals in very high esteem. Consequently, there is an almost innate bias that jurors have against suing doctors and other caregivers. That bias is reflected in the paucity of verdicts in favor of the plaintiff in one of these cases. All is not lost, however, because with careful preparation of these complex cases, our firm resolves many of our malpractice cases prior to trial, and we have achieved considerable success in the courtroom despite the statistics. Our success notwithstanding, neither we, you, nor anyone else can ever predict which cases will settle and which will have to be tried. Therefore, you must go into your case with the understanding that twelve strangers on a jury may end up deciding your case's fate.
Secondly, medical malpractice cases take years to resolve. You need to prepare yourself for an experience that at times can appear to move at glacial speed. Even if you have the strongest case in the world, there is no incentive for a malpractice insurer to settle your claim early. Malpractice cases are placed on a schedule that allows three years, at the least, from the time the case is filed to the time of trial. There are exceptions to this schedule but they are rare. So understand that you may have to live with your case for a long time while our attorneys prepare it to achieve the best possible outcome for you.
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Be sure to read Parts 1 and 3 of this article:
- Your Medical Malpractice Case: Here's What to Expect - Part 1
- Your Medical Malpractice Case: Here's What to Expect - Part 2
- Your Medical Malpractice Case: Here's What to Expect - Part 3