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Can You Buy a SPEEDPASS to Get Your Medical Malpractice Case to the Front of the Line in Court?

The answer is no, you can't.
It's not like Disney World.
It's not like Jetblue and being a Mosaic member.

At Disney, you can buy a speedpass to bypass the long lines.
Just come back a few hours later and walk to the front of the line.
No waiting.

Just pay Disney a healthy fee for this privilege.
Why can't you do this for your lawsuit here in New York?
I'll tell you why.

But first, you need to know that a medical malpractice lawsuit typically takes two to three years to resolve.
You might be asking "What could possibly take so long?"
There are lots of reasons.

Let me give you a few...

From the time you first reach out to an attorney to see if you have a good case, here's what happens...

LET'S GET YOUR RECORDS FIRST

Your lawyer MUST get all your records.
To evaluate.
To have a medical expert review.

That can take weeks to months.
It's not as simple as clicking a button online and all of a sudden all your medical records appear from many different sources.
Then, it takes time for our expert to scour through your records.

"Ok, that explains the first process, what happens next?"

Assuming our medical expert confirms you have a good case, now we have to prepare your lawsuit papers.
That's known as a summons and complaint.
Once they're prepared, we have to hire someone to deliver it to the doctors you are suing.

The person we hire is called a process server.
This process can take a few days to weeks depending if he can properly deliver it to each person or company you're suing.
"Ok, I understand that, but why is there more delay? Can't we just go right to trial?"

No, we can't.
The doctors you sued have to answer the allegations you've raised in your lawsuit.
You claimed that your doctor was careless.

You claimed that his carelessness caused you harm.
You also claim that your injuries are permanent.
Once your doctor gets your lawsuit papers he sends it to his insurance company.

The insurance company hires a lawyer to represent him.
The defense attorney now has to answer your allegations.
The doctor typically will say "I did nothing wrong! Why are you suing me?"

Then he'll say, "If I did something wrong, SO DID YOU Mr. Patient!"
Then he'll argue that "If I did something wrong whatever I did did NOT cause you injury."
Then he'll say that "If I did something wrong and I caused you injury, your injuries are not as bad as you claim."

These are the typical defenses that doctors raise when answering these allegations of malpractice. 
This process takes another few weeks.
"Ok, so why can't we just go to trial from here and BYPASS everything?"

I wish it were that simple.
Here's why we can't...
After you've started your lawsuit and the doctor has answered your allegations, they really don't know the details of why you sued.

IT'S DISCOVERY TIME

They don't know the details of what happened to you.
They don't know what injuries you have.
Nor do they know how your injuries have disabled you and prevented you from your daily activities.

"Can't we just tell them?" you ask.
Yes we can.
But they don't always believe us.

They want to find out for themselves.
They do that by getting all your medical records.
How do they get your records?

Simple.
We give them permission slips called authorizations that allow them to get your medical records.
Remember that initial process I talked about at the very beginning to evaluate your case?

The defense starts to do the same thing.
That can take weeks to months for the defense to gather all your records.
"Ok, I get it. But once they get my records, can't we just go to trial now?"

No, we can't.
"Why not?"
Because neither side is ready for trial.

"Why not?"
We need to question the people involved in your lawsuit.
The defense will want to ask you questions about what happened to you.

They will want to know detailed conversations with your doctors and hospital staff.
They want to know whether you followed your doctors' instructions.
They want to know what injuries you have and what you can and can't do now.

This question and answer session is called a deposition.
It's pretrial testimony.
It takes place in your lawyers' conference room.

There's no judge or jury there.
Just your lawyer, the doctors' lawyer and a court stenographer to record all the questions you're asked and all of your answers.
This takes months to set up and coordinate everyone's schedule to be there on that date.

Plus, the defense refuses to do this early in the lawsuit since they will not yet have obtained all of your records early in your case.
The defense typically asks to question you about three to four months after requesting your medical records.
"Great. Once I've been questioned, can we now go to trial?"

Not yet.
I'm not ready.
Neither is the defense.

"Why not?" you ask.
Because I need to question the doctors you've sued.
Sometimes you sue just one doctor.

Sometimes you sue many doctors and hospital staff.
I will likely need to question multiple doctors in any lawsuit.
Trying to get a mutually agreed date to question a busy doctor is challenging.

It can take months to nail down a doctor and his attorney to show up for questioning.
Scheduling delays are common.
"The doctor has surgery on those days...the doctor is away that week. I'm not available then. I'm on trial. Let's do it two weeks later..."

Sometimes we have to ask the judge to intervene and force the doctor to show up for questioning.
Sometimes there are valid reasons for the delay in getting his deposition done.
Maybe the defense lawyer has argued that we didn't give him the proper permission slips to get your medical records.

Maybe the defense lawyer wants medical records going back twenty years.
We say no, that's way too long.
The defense lawyer may make a formal written request to the judge.

That request may take months to resolve and get a decision.
The defense refuses to proceed forward until he gets an answer to this issue.
If the doctor is sick, that will delay matters.

If the doctor has died during the course of your lawsuit, it will also delay matters.
And yes, your case can continue if the doctor or you die during your lawsuit.
Having a family member step into the shoes of the person who died takes time.

If I have to question multiple doctors, the defense refuses to produce them one day after the other.
That would be too easy.
Instead, they claim they need a few weeks between each one.

Those weeks often get dragged into months.
Scheduling conflicts, we're told.
Finally, all the depositions are done!

"Great! Let's get to trial now!" you exclaim with glee.

Not yet.
Still not ready.
We're getting closer.

"What's next then?"

After the pretrial questioning of all the people in your lawsuit are done, each side needs to reasses and reevaluate.
Are we missing any medical records?
Does the defense need any updated medical records?

The defense might want to have you examined by a doctor of their own choosing.
To see for themselves if you're really as injured as you claim.
The defense likes to call this an 'independent medical exam'.

Nothing could be further from the truth.
There's nothing independent about this examination.
The doctor is HIRED by the doctors' attorney or the doctors' insurance company.

That's not independent.
That means he's PAID by the doctors' insurance company.
They have a financial interest to minimize the extent of your injuries.

Scheduling and appearing for this medical exam takes weeks to months.

"Are we ready now? Can we go to trial now?"
Sorry, not yet.
The attorneys need to appear in court to let the judge know if there are any other issues to be resolved.

Assuming there are no legal hurdles that either side must overcome, the judge will at this point tell us to file a document with the court letting them know your case is NOW ready for trial!

"JUDGE, WE'RE READY FOR TRIAL"

"Yes!" you think. "FINALLY! We should get to trial in a few days or weeks," you again think.
That would be incorrect.
The document I mentioned is called a 'Note of Issue'.

It lets the court know that we are now ready for trial.
You know what the court says when we file that document?
"Congratulations! Take a number. We'll notify you anytime in six to fifteen months when your case comes up for trial."

"WHAT? What do you mean six to fifteen months! How is this possible? My case is now READY for trial!" you argue.
You're right.
The problem is that there are hundreds of cases ahead of yours waiting to get to trial.

Your case goes to the bottom of the list.
Day by day, as other cases get to trial and are resolved, your case slowly moves up.
In some counties in New York, there's a backlog of six months.

In other counties, it could take a year or longer to actually get to the front of the line.
The most frustrating part about the wait is that we have no control over this.
Nor do you.

We can't buy a court speedpass to get to the front of the line.
Imagine if we could...
EVERYONE would buy it.

Everyone would want to get to the front of the line and not wait six months to more than a year for their case to get to trial.
The court system would make a lot of money, but then there'd still be a huge backlog.
Now everyone who bought a speedpass would be waiting for their case to get to the front of the line.

You should know that there's actually a lot that goes on behind-the-scenes while your case is waiting to come up for trial.
You might think nothing's happening, but there really is.
First thing that happens is the defense will likely ask the judge to dismiss your case.

Yes, this typically happens within 60 days after we notify the court that your case is ready for trial.
This is known as a motion for summary judgment.
Your attorney has to reply to this request.

Then it takes months to present both sides of the argument to the judge (another scheduling issue, mostly with the court).
Then it takes months to get a decision from the judge.
Assuming your lawyer wins that argument, your case still sits and waits its' turn.

Settlement discussions might be taking place.
Your lawyer will tell you if he gets an offer.
Your lawyer must also update your medical expert.

We have to send our expert any medical records we obtained that he did not originally have.
We have to send him transcripts of your deposition and the doctors' depositions.
He needs to read all this to confirm that his opinions and conclusions are still the same.

He needs to do this with each expert he's hired.
He also needs to begin preparing your case for trial.
That means meeting and preparing each of your witnesses.

Meeting with each medical expert.
Preparing exhibits and anatomical models.
Doing legal research to give to the trial judge.

Prepare subpoenas to compel your doctors' offices and hospitals to send your medical records into court.
But he can't send these out until you have a definite trial date.
Prepare opening argument.

Prepare cross examination for all witnesses.
Prepare you for questioning during trial.
We call that direct examination.

"Ok, does this mean that when the court tells us it's our turn, we go to trial?"

Sorry, it doesn't.
There's often more delay.
When we get notified by the court that your case has finally gotten to the top of the pile, the attorneys are told to come into court.

JUDGE WANTS TO SEE US

"What for?" you ask.
For a pre-trial settlement conference.
The judge wants to know if your case can be settled.

The judge wants to know if the defense is going to offer money.
If he can settle your case without sending it out to a trial judge, he's just saved a lot of court resources.
All attorneys are required to appear on this conference.

They must have authority to discuss settlement.
When we appear, the conversation with the judge goes something like this...
"Defense counsel, do you have any money on this case?"

"Judge, we just got this case for trial. We haven't had time to conference it with the insurance company. There may be a chance we can settle but I need a few months to get an answer from the claims people since they only have these conferences once a month, the defense lawyer tells the judge.

"Fine. I want you both back here in two months," the judge orders.

Two months later we appear for another pretrial settlement conference.
"So counsellor, what's the defense's position? Will you put money on this case?"
Assuming he's gotten authority to offer money, he might say "Judge I have this amount. If they want more, I need to meet with the claims people at the next claims conference. I don't know if they're willing to offer more. Can I get another month or two?"

"Fine. Come back in two months," the judge says.
The judge is trying his best to get this case settled before sending it out for jury selection and trial.
He wants to give the defense enough time to get an answer.

Some judges give many extensions.
Others are not so tolerant.
"Listen, you had two years to try and settle this case. If you wanted to, you could have picked up the phone and called Mr. Oginski to settle. You didn't. No more extensions. You're picking a jury three weeks from now. No more excuses," the judge might say after getting multiple excuses from the defense.

Even though your case is now at the top of the pile, we have to go through the pretrial settlement conferences.
That adds more time.
But wait! There's more...

In some counties, when the judge tells us to appear for jury selection, there are often backlogs of cases waiting to begin jury selection.
That means that even though we've been told to go pick a jury, we might have to wait WEEKS or more to actually be called into court to start jury selection.
Other courts are more reliable and hold the jury selection date sacred.

Like you, I WISH we had a speedpass program.
It would expedite your case.
You wouldn't be sitting around for years wondering why your case isn't moving any faster.

You would't be sitting around for years wondering if or when your case will resolve.
You wouldn't be so frustrated just waiting.
Not knowing.

Personally, I'd love having a speedpass program.
Is it likely to happen in the court system in New York?
Not a chance.

Now you know why it takes so long to get your case resolved from start to finish.

To learn how an attorney prepares your case for trial, I invite you to watch the video below...

RELATED ARTICLES:

  1. What happens during a settlement conference on your case?

  2. Trial judges' refusal to adjourn case again results in great outcome for injured patient

  3. Judge yells "What do you mean you're not ready for trial! I'm dismissing your case!"

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer