Chapter 1. The General Course of Medical Malpractice Litigation

• Pages: 1-15
• Author: Nicole DeMaise, Leslie Isaacman Yohey, and Sarah Pazar Williams

1

1

THE GENERAL COURSE OF

MEDICAL MALPRACTICE

LITIGATION

Nicole DeMaise, Leslie Isaacman Yohey, and Sarah Pazar Williams

This chapter is intended to introduce the general course of medical malpractice

cases. Parties can face extensive and complex procedural requirements in the

course of these lengthy, often unpredictable lawsuits. This chapter begins with a

general fact scenario for a medical malpractice claim that will help frame the steps

of a typical case. It goes on to address five distinct phases of medical malpractice

litigation: (1) the initial investigation; (2) procedural considerations and the fil-

ing of suit; (3) pretrial discovery; (4) potential negotiations and settlement; and

(5) preparing for and going to trial.

The first step in the course of a medical malpractice case is the initial investiga-

tion of the claim. A case should never be initiated without a thorough investigation

of the circumstances surrounding the alleged harm. At the outset, the patient or

the patient’s family who is seeking to initiate the lawsuit should gather all relevant

medical records. Upon gathering the records, when the patient or family meets

with an attorney, the attorney should have a very detailed discussion with the

patient or family about the facts of the case as well as any possible options for legal

redress. The attorney should then investigate all potential defendants and consult

with experts about standard of care and causation.

The second step involves various procedural hurdles and the filing of the actual

lawsuit. This requires considerations about what legal issues and allegations are to

be raised, relevant presuit notice requirements, applicable statutes of limitations,

and party determinations, among other things.

The third step is pretrial discovery. Pretrial discovery involves written discovery

in the form of interrogatories and requests for production. It also involves taking

depositions of the parties and fact witnesses, including the patient and his rele-

vant family members, as well as the caregivers who were involved in treating the

patient. In addition, pretrial discovery involves retaining and disclosing experts

who support the allegations or defenses, as well as deposing experts disclosed by

other parties.

kra57974_complete.indd 1 1/18/21 8:15 AM