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Lawsuits Take Forever to Resolve. Why? Why is it that Medical Malpractice Lawsuits in New York Go On For Years?

You've probably heard that a lawsuit in New York can take two to three years from start to finish.

That's crazy!

That's the timeframe when your lawsuit actually gets started until the time it is finished.

That's the average length of time that a lawsuit takes to come to fruition.

There are some cases that are settled early.

There are other cases that go all the way to trial and then an appeal.

There are some cases that get resolved in the middle.

In medical malpractice cases, the defense rarely settles early.

That means there's a good chance your case will go all the way to trial and to a verdict.

When you bring a lawsuit against your doctor, you must be prepared to go to trial.

Many injured victims come into the office with the expectation that because of the strength of their case, they anticipate settling their case early on.

This rarely happens.

Why?

It's because in a medical malpractice case in New York, we must show three things:

MORE LIKELY THAN NOT...

  1. Your doctor was careless.
  2. His carelessness was a cause of your injury, and
  3. Your injury is significant.

All of those things must be confirmed by a doctor who has either reviewed your records or has treated you.

Only then are we permitted to file a lawsuit on your behalf.

Here's where the initial problem arises.

You know, in your heart of hearts, that your doctor screwed up.

You know that his carelessness caused you terrible injuries.

You know that your injuries are permanent.

You know that your injuries are disabling.

You know how your life has been affected because of your injuries.

Your family sees it every day.

You live it every day.

Your social activities are altered.

Your daily activities are altered.

Your family's activities are altered.

You know this, because you live it.

When you bring a lawsuit seeking money as a form of compensation for the harms, losses and injuries you suffered, the defense knows none of this.

Yet.

They will, but they don't right now.

They don't know yet what your doctor did wrong.

They don't know how that wrongdoing caused you harm.

Nor do they know how badly you were hurt.

They will learn all of these details.

Soon.

But it takes time for them to learn all of this.

They will learn from reading your medical records.

They will learn from talking to you.

They will learn from asking you questions during a question and answer session known as a deposition.

They will learn from talking to your attorney.

One problem with this process is that it it takes months and months for them to gather all of your records.

The defense attorneys have the mindset of “trust but verify.”

That means we are obligated to provide defense attorneys with copies of all medical records we have obtained.

But instead of relying only on those records, the defense wants and is entitled to more.

The defense wants accurate copies of your medical records directly from your doctors and the hospitals you were in.

That means we must give them permission slips to get your medical records directly from your physicians and the hospitals where you were treated.

That means it will take many months for them to send out your permission slips authorizing your doctors and hospitals to release copies of your medical records to these defense lawyers.

Once those records have been obtained, the defense attorneys must now review each and every medical record.

He must report his findings directly to the insurance company.

In many instances, the insurance company claims representative wants copies of those records as well for their own in-house medical doctors to review.

That takes additional time.

Then, there are instances where the defense asks for certain medical records that we believe are unrelated or not appropriate for their review.

For example, let's say your case involved a failure to properly perform surgery resulting in injury and damage to your bowel.

The defense is entitled to get those records.

However, they also requested copies of your medical records from 20 years earlier were you had surgery to fix a fracture in your arm.

We call that a fishing expedition.

The defense argues that this information is relevant to the claims you are making in this particular case.

In all likelihood, we would ask the judge to dismiss this request because it's irrelevant.

We'd ask the judge to throw out this request because it is unrelated to your claims or the defenses being made by the doctor or hospital.

This takes up valuable time which extends your litigation.

Many times the exchange of documents and records is held up when one side asks the judge to intervene and make a ruling about whether the other side must turn over certain documents.

Imagine how clogged the court system would be if the judge had to listen to hundreds and thousands of requests every year that involved turning over routine medical records.

In an effort to short-circuit this problem, the judge uses his law clerk to help the attorneys work these issues out during conferences that are held in court.

The law clerk will usually tell the attorneys that they will incur the wrath of the judge if he has to listen to another one of these improper discovery requests.

That type of pressure usually gets the attorneys to change their stance on requesting or providing improper records.

If the attorneys and the judge's law clerk are unable to resolve these discovery issues, an attorney can bring up the issue formally using a written request to the judge.

Legally, this is known as 'making a motion'.

A 'motion' is a formal request for the judge to do something.

A 'motion to preclude' is a request to the judge to prevent a witness from testifying or from one side introducing a piece of evidence.

A 'motion for sanctions' is a request to punish the other side for wilfully doing something they should not have done.

A 'motion for summary judgment' is a request to throw out the other side's case.

The next delay that often occurs in a medical malpractice case involves scheduling depositions.

In case you don't know, a deposition is a question and answer session given under oath in your attorney's office.

It's an opportunity for the other side's lawyer to ask you questions about what happened and how your injuries have affected you.

There is no judge present during your deposition.

There is no jury present either.

There is a court reporter present to record all of the questions being asked and all of the answers you provide.

Those questions and your answers get transcribed and put into a booklet known as a transcript.

These questions and answers are your pretrial testimony.

Even though you are giving answers in your attorney's office in an informal setting, what you say carries the same exact weight as if you're saying it at trial.

Scheduling your pretrial testimony can sometimes be challenging.

The attorneys may not be available on a particular date.

You may not be available based upon your ongoing medical care and treatment.

It is usually the job of a deposition clerk in your attorney's office to work out the schedule with the defense attorney's scheduling clerk and come to a mutually agreed-upon date and time for you to be questioned.

You might think the staff who work in opposing lawyers' offices are nasty or obnoxious to each other when scheduling.

Just the opposite.

In fact, our staff is required to be courteous and professional when dealing with other lawyers' staff, especially when setting up depositions.

Once your pretrial testimony has taken place, now we must schedule the doctors whom you have sued so that we can question them.

In most medical malpractice cases, an injured patient will sue not just one doctor, but multiple doctors and hospitals.

That means that each doctor will be questioned separately and on different dates.

As you can imagine, scheduling a doctor's deposition can be challenging and frustrating.

We must often work around the doctor's schedule as well as the attorney's schedule to get a mutually agreed-upon date to proceed.

Sometimes, the defense gives us a hard time with scheduling.

It can be months after your deposition has finished before we question the first doctor you sued.

Then we go in sequence and question the next doctor and the next.

It could take months for all of the doctor's depositions to be finished.

In addition, if there are other witnesses that are critical to our case, we must also schedule those and question them as well.

While this is ongoing, there may be other legal issues that arise that require the court to intervene.

The defense might try and throw a wrench into your lawsuit by claiming that you do not have a valid case.

They may ask the court to throw out your lawsuit at any point during the litigation process.

If one of the doctors you sued did not receive your lawsuit papers properly, then his lawyer will ask the court to have your lawsuit against him dismissed because he was not served properly according to the law in New York.

If you did not sue one of your doctors within the timeframe that is required to bring a lawsuit, known as the statute of limitations, the defense will ask the court to dismiss your lawsuit against as being untimely.

Having to deal with these legal issues in the midst of proceeding with discovery in your case extends the time that your lawsuit will take to resolve.

In some cases, when the judge is asked to intervene and decide an issue of law, the discovery process often grinds to a halt.

The defense argues “Why should we continue with the discovery process if there's a very good chance the court is going to throw out this lawsuit against this doctor?”

That argument sometimes has merit.

Sometimes a judge will agree that all discovery on the case should stop temporarily until he makes a legal ruling about whether the case against this doctor was timely.

Other times, the judge will order that all discovery should continue as scheduled.

During the 'discovery phase' of your lawsuit, the defense is literally “discovering” what happened to you.

They are learning about your claims and what you believe was done wrong.

They are asking your attorney to tell them specifically and exactly what their doctor did wrong.  

They do this by asking for a 'bill of particulars'.

This is a legal document that your attorney must provide.

In it, your attorney must detail exactly what was done wrong, what should have been done and what injuries you suffered.

This legal document also details your medical expenses in addition to your lost earnings if you are claiming that.

If your attorney has not provided all the information the defense requested in this document, they will often ask the court to intervene.

This creates a classic showdown between your attorney and the defense attorney.

The court will often call the attorneys in for a conference to try and resolve this issue.

During the discovery phase of your lawsuit the court requires attorneys on your case to come into court every few months to give status updates on how discovery is proceeding.

Doing this allows the attorneys to raise any issues they are facing with their adversary.

These court conferences are a routine part of handling this type of malpractice case.

Many attorneys don't even tell you about these status conferences.

Many attorneys don't even disclose to you what actually goes on in court during these status conference.

The best attorneys I know in New York do just the opposite.

I find that the best trial lawyers are ones who constantly communicate with their clients.

They constantly update them on what is going on with their cases on a regular basis.

I find that the smartest attorneys are ones who disclose to their clients what happens on each of these court conferences, even if nothing really is happening.

There's a key reason for doing this.

It's to keep you in the loop.

It's to help you understand why your case is taking such a long time to resolve.

It helps you recognize why the wheels of justice turn slowly.

Let's say that the discovery part of your case has finished.

The defense has obtained all of your records.

Any legal issues concerning the exchange of medical records and other necessary evidence have been resolved by the court.

It has taken you at least one to two years to get to this point.

I should also mention some other reasons that your case could be delayed.

If one of the litigants in your lawsuit dies, that will create a significant delay.

If one side declares bankruptcy, that will also create a significant delay.

Once discovery has finished, we must notify the court that discovery has ended and your case is technically 'ready for trial'.

Legally, we must file a document called a “Note of Issue.”

This alerts the court that your case is now ready for the trial calendar.

You might get all excited and think that your trial date will approach quickly.

Not so fast.

Your case goes to the bottom of the pile that is awaiting trial.

There could be hundreds and even thousands of cases ahead of yours waiting to go to trial before yours.

This backlog of cases varies depending upon which county you're in.

Some counties have a higher backlog than others.

We may have to wait nine months before we are called in for a pretrial conference as we approach trial.

In another busy county, we may not get called for a pretrial conference for more than a year.

During this time, very little, if anything, happens on your case.

It's more like hurry up and wait.

This waiting period is very frustrating for an injured patient.

It's upsetting because you believe nothing is being done on your case to move it forward.

That is only partially right.

However, during this time there is actually a great deal that happens on your case behind the scenes.

In the months leading up to trial, your attorney must prepare your case thoroughly.

Your experts must obtain your latest medical records and deposition testimony in order to give them a better understanding of what went on.

Research must be done on the opposing experts.

We must meet with our medical experts to prepare them for trial.

We must meet with other witnesses who we anticipate calling to trial.

We will often reach out to the defense attorney and their insurance companies to see if they are interested in trying to negotiate.

We must obtain anatomical models and drawings to help us show the jury what happened.

We must enlarge some of your medical records to help the jury see and learn what happened.

We might use computer animation.

Then, when your case finally gets called for a pretrial conference, it's just the beginning of the pretrial process.

What that means that the judge tries to determine whether this case can be settled before trial.

In many cases, the defense has not yet had an opportunity to present your case to their in-house decision makers before coming to a conclusion about whether they will negotiate.

The defense attorney will often ask the judge for additional time for the insurance company to conduct their final in-house review.

If there is the possibility that your case could be settled, the judge will often give the defense more time to evaluate your case.

That could delay your next pretrial conference for few months.

If the defense still has not completed its review in the next scheduled conference date, there are instances where a judge will allow them additional time to complete their review.

If, after a few conferences, it becomes clear that the defense is simply delaying, the judge will set a definite trial date.

These are just some of the reasons why a lawsuit in New York involving claims against your doctor or hospital take two to three years to resolve.

To learn what happens if the defense isn't ready to negotiate during a pretrial conference, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer