If you thought it would be a few days or weeks, you'd be mistaken.
More like months.
If this were a car accident, yes, you could theoretically start your case the next day.
You could start it in a week.
But it's not.
You believe your doctor was careless.
You believe your doctor violated the basic standards of medical care.
You believe your injuries are a direct result of your doctors' wrongdoing.
You search for the best medical malpractice lawyer you can find.
You meet with him.
You talk to him at length about your case.
He says "I'm going to investigate and let you know."
You say "Great," and then leave his office wondering just when that will be.
Days turn into weeks.
You haven't heard anything from your lawyer.
Weeks turn into months.
You're wondering what the heck he's doing to evaluate and investigate your case.
You believe it's clear cut.
You believe your doctor was careless and that's what caused your injuries.
What's the hold up?
Why the delay?
You're not getting better.
You're not back at work.
You want answers and you want them now!
Let me share with you what's taking so long and why you won't get a quick answer.
In New York, an attorney CANNOT start a lawsuit against a doctor or hospital unless he has a medical expert who confirms (1) there was wrongdoing, (2) the carelessness caused you injury and (3) your injury is significant and/or permanent.
"Ok," you say. "But what does that have to do with how long my case will take to start?"
It has everything to do with it.
Let's go back to the car accident case I mentioned earlier.
If you have the police report showing the other car crossed the double yellow line causing the crash, your attorney could (theoretically) start your lawsuit that day. He has a good faith basis to do so. He won't know the extent of your injuries yet, but he could technically start a case on your behalf.
We can't do that in a medical malpractice case.
The law doesn't allow us to do the same thing.
Let's break it down so you know exactly what will happen...
When you call an attorney's office to make an appointment, you will be asked a series of questions to determine if you might have a case.
Did this happen to you or a family member?
When did this happen?
Where did this happen?
What injuries do you have now because of what was done wrong?
Has any doctor confirmed your belief something was done wrong?
If you are then invited into the attorney's office, you can expect to spend about an hour discussing in detail what happened.
There's no fee to meet with a medical malpractice attorney in New York.
At the end of your meeting, the lawyer will tell you whether he is interested in investigating your matter.
If he is, he'll have you sign a piece of paper authorizing him to investigate and pursue your matter if it has merit.
That's known as a retainer agreement.
If you don't sign that permission slip, your attorney cannot and will not investigate your case.
From your conversation alone, your lawyer doesn't yet know if your case has merit.
He may have a sense of whether it's a valid case, but doesn't know for sure.
He needs to make an educated decision.
The only way to do that is by doing a detailed, thorough investigation.
That means getting your medical records.
All of them related to the incident.
It could be a few pages.
It could be thousands of pages.
It doesn't matter how many records and how many pages.
He's got to get them all.
That often takes months.
It's not as simple as making a phone call to your doctor's office and saying "Hey, it's attorney Oginski. Can you send Mrs. Jones' records over to me right away? I need to read them to decide if I can sue you..."
Here's the process of what really happens...
You sign a permission slip.
It gives me permission to request your medical records from different doctors and hospitals.
I send that permission slip along with a cover letter to your doctor's office.
A few weeks later, someone from your doctor's office finally gets around to responding to my request.
"Her medical record is 350 pages. Please send a check for copying costs in the amount of $275 dollars and we'll send her records."
Your attorney sends a check for copying costs to the doctor's office.
Days or weeks later, your doctor's office has copied your medical chart and sends it to your lawyer.
What happens then?
This is done for every medical record that needs to be examined.
Then, your lawyer actually has to read every single page of every medical record that comes into the office.
The best attorneys will take notes on what they read to use later.
It could be many months before all of your medical records have been obtained.
Then, after your lawyer has read every page of every record, he now has to copy all your records and then hire a qualified medical expert to review and analyze all your records. Once he has retained a board certified medical expert, he will send your records out to be evaluated.
Weeks or months later, after the expert has finished reviewing all your medical records, he will reach out to your lawyer to discuss his thoughts and conclusions.
During this time, you have no idea what's happening.
You don't know what your lawyer is doing.
You don't know what records your lawyer has obtained.
You're in the dark.
Most lawyers don't communicate with their client during this investigation phase.
There's not much to talk about.
But behind the scenes, there's a lot going on.
Obtaining your records.
Paying for your records.
Reviewing your records.
Copying your records.
Fighting with the hospital to send all the records your lawyer requested.
Waiting for more records to be sent out.
Waiting to hear from the medical expert.
Talking with the medical expert.
Finally, you get a call from your attorney with the news.
"Mrs. Jones, I just wanted to let you know I spoke with our medical expert who reviewed all your records and he confirms you have a valid case," your lawyer tells you.
Now can your attorney start your lawsuit?
The answer is yes.
Well, how quickly can he do it after getting confirmation that you have a valid case.
The answer is "It depends."
How's that for a vague lawyerly answer?
Once your lawyer has confirmed you have a good case, he now has to prepare the actual papers to start your lawsuit.
That's known as preparing the summons and complaint.
The summons is a papers that alerts the people you're suing that they have certain amount of time to answer the allegations in the accompanying paper called a complaint.
The complaint is a document that sets forth general allegations of negligence and medical malpractice.
To prepare this could take a few days or weeks, depending on your lawyers' caseload and how busy he is at the moment.
It also depends on what your deadline is for filing your lawsuit.
Every case has a deadline for starting a lawsuit.
If you're close to the deadline, your lawyer will likely drop everything else he's doing and rush to get this filed with the court.
If there's no time urgency, your lawyer will likely get to it soon.
But just preparing your lawsuit papers is not what starts your malpractice case in New York.
Your lawyer has to take the summons and complaint and bring it in to court.
To the clerk of the court to be exact.
He then has to buy an identifying number that will follow your case as it winds its' way through the court system.
We call this an index number.
We buy it for you.
The clerk then keeps a copy of the summons and complaint and opens a new file with your identifying number.
The act of buying an index number and filing your summons and complaint is what actually starts your lawsuit.
CONGRATULATIONS! Your lawsuit has now officially been started.
How long did that process take?
Many many months.
You were hoping to start your case within a few days or weeks after your doctor caused you harm.
That's not how it works.
If it turns out that after that thorough review by your attorney and his medical expert that you DON'T have a valid basis for a case, now you have to search for another attorney to see if he'd be willing to investigate your case all over again. That will take even more time to get another answer.