One of the largest drawbacks of our civil justice system is the amount of time it takes to litigate a case from start to finish. Here in Chicago, it is not uncommon for a medical malpractice case to take four years from the time the case is first examined to the point where the case reaches a final resolution. One of the common questions our clients ask is for an explanation of the many steps involved in litigating a complex medical malpractice case. While these phases of litigation are themselves, the subjects of volumes of books, this blog post attempts to provide a very basic overview of the major various stages of litigation involved in a complex lawsuit.
Pre-Suit: The first stage in any lawsuit is to thoroughly investigate the claim. This begins by meeting with the client and asking detailed questions to help understand exactly what may have happened to cause the client’s injury and why the event may have occurred. This examination is often not just limited to a person’s most recent medical procedure. Attorneys often need to understand a potential plaintiff’s detailed medical history in order to fully grasp the myriad of factors that may have influenced the medical decision-making. We then obtained all of the client’s relevant medical records and thoroughly review them. This generally involves going through thousands of pages of doctors notes, laboratory reports, physicians consultations and many other types of medical documentation.
Once we review all of the records and are able to make a determination as to whether there are grounds for a medical malpractice lawsuit, we present the records to a doctor who specializes in the field of medicine involved in the claim. Under Illinois law, a licensed physician must review and verify that there is valid cause for a medical malpractice claim. See 735 ILCS 6/2-622. Only after all of these steps are completed, are attorneys able to file a lawsuit for medical malpractice.
Filing the Lawsuit: The second stage in the process is the actual filing of the lawsuit. This involves creating a document (referred to as the “complaint”) that lays out all of the allegations the plaintiff is making against a medical professional or medical facility. In Chicago, the complaint is filed in the Law Division of the Circuit Court of Cook County located at the Daley Center in the middle of Chicago’s Loop. Once the lawsuit is filed, generally a Cook County Sheriff must personally deliver or serve the complaint on the each Defendant. Each Defendant then has a short period of time to “answer” the complaint by admitting or denying the Plaintiff’s allegations. The Defendant can also move to dismiss the complaint at this time.
Discovery: The third, and generally longest stage in a lawsuit is discovery. Discovery is a process where each party exchanges information and interviews all of the relevant parties and witnesses to the case. The discovery phase of a lawsuit can often take years to complete and could be the subject of numerous blog posts alone. In short, however, discovery is divided into two phases: written discovery and oral discovery.
Written discovery involves the parties asking each other a number of questions known as “interrogatories.” Interrogatories can include everything from questions seeking a hospital list all employees who had contact with the plaintiff during the alleged incident to more detailed issues such as the policies, procedures and guidelines that the hospital asks doctors to follow during a specific procedure. The parties also exchange “production requests” which involves the exchange of every document, medical record, insurance policy or any other record that may be relevant to the claims alleged in the lawsuit.
Oral discovery is accomplished through the taking of depositions. Depositions are examinations conducted by an attorney who asks questions about the facts of the lawsuit to the parties and witnesses. The testimony by these witnesses is given under oath and is formally recorded by a court reporter. Each deposition can last as long as three hours. The purpose of depositions is to further the investigation into the case by allowing parties to both explain what happened and allow for questions to be asked as to why the incident may have occurred. The number of depositions taken are numerous and time consuming. Generally, they involve the plaintiff, his or her family, the defendants, other witnesses and expert witnesses hired by each side to attempt to explain why an incident may or may not have been malpractice.
Trial: If a lawsuit is not settled by the time discovery is complete, the case is finally set for a trial. At the start of the trial, the parties spend several days arguing various motions regarding the evidence that can be offered and the witnesses who can testify. A jury, which is made up of residents of Cook County, is then selected to hear the case. Each side spends several days presenting testimony and evidence regarding the lawsuit before this jury. The jury is asked to deliberate amongst themselves to reach a verdict. The testimony and evidence that is presented by the attorneys is gathered through the multitude of information obtained through the previous phases of the lawsuit. Only after the thorough processes described above, would it be possible to present a clear, comprehensive and fair trial to the jury.