Attorney Joseph Taraska is a senior trial lawyer in complex litigation with Morgan and Morgan in Orlando, FL. With decades of experience in this practice area of law, Joseph Taraska explains the process of a medical malpractice lawsuit.
Every year, attorney Joseph Taraska reports that between 15,000 and 19,000 patients who have been wrongfully injured by the negligence of a doctor will file a medical malpractice lawsuit. Although each case is unique, it can take up to three years for the lawsuit to reach a conclusion. During that time, the patient must prove that the medical professional failed in their duty to provide adequate care. The definition of what constitutes adequate care varies in the states. However, generally it is considered to be a failure to provide the care that a reasonably prudent physician or hospital would have provided under the same circumstances.
Joseph Taraska explains that a medical malpractice lawsuit is a complicated legal proceeding overseen by an intricately woven system of checks and balances. It can be difficult to understand each step of the process, so we’ve carefully broken it down to its simplest form. If you’re planning to file a medical malpractice lawsuit, you may choose to use this information as you start strategizing.
Attorney Joseph Taraska on Preparing for the Lawsuit
Attorney Joseph Taraska says that the first step in evaluating a potential claim is to gather the relevant medical records. Patients have a right to a copy of their records. Although a provider can charge for the copy they cannot deny a patient or their counsel the copies.
Once the records have been obtained they are generally sent to a medical expert for review. Attorney Taraska will usually select a provider with the same credentials as the provider whose care is being investigated. In many cases these are physicians who not only treat the same illness but also hold professorial positions at well- respected medical institutions.
Some states have a procedure for pre-suit evaluation which must be accomplished prior to filing suit. In those states it may be required that the expert produce a sworn affidavit stating that in their opinion there is a reasonable belief that malpractice occurred. Even in these states that do not have such requirements most counsel will obtain a statement from their expert to guide them as to who should be included in a suit and for what acts.
In those states which require a presuit investigation, there is generally a procedure whereby both parties have the opportunity to obtain information from the other and evaluate the case. The purpose is to determine if the matter can be resolved without litigation. If it cannot be resolved at that stage litigation may commence
Attorney Joseph Taraska states that when a matter cannot be easily resolved during presuit and in those states that do not require a presuit evaluation, litigation may be commenced by filing a formal complaint at the court house. This is generally filed in the jurisdiction where the malpractice occurred. Once filed formal discovery will begin. This usually includes the following:
- Exchange of information through written questions and requests for documents.
- Depositions taken under oath of the injured party and witnesses.
- Depositions under oath of the medial providers whose care is questioned
- Depositions under oath of each side’s expert witness.
- One or more mediations where the parties gather with a neutral mediator to determine if the matter can be resolved
Most cases are resolved amicably during this process. Attorney Taraska notes that this occurs in that counsel for the injury party will generally do an extensive investigation and evaluation prior to proceeding. As a result, those cases that should resolve are the ones that proceed to this point.
However, if the matter cannot be amicably resolved attorney Taraska’s experience is that it will in most circumstances be referred to trial before a jury. Because of the complexity of these cases it is not unusual that a trial may last for several weeks.
Trying the Case
As noted by Attorney Joseph Taraska, most cases are settled individually between the two parties. However, if the case does proceed to court, it will be tried as a civil case before a jury.
Attorney Joseph Taraska says that during the proceedings, the plaintiff will first present their case to the jury by sharing their evidence and expert testimonies. It’s up to the plaintiff to show both that the medical service provider failed to provide sufficient quality of care and that it caused their injury.
After the plaintiff presents their case, the defendant can then present theirs. During the defendant’s testimony, they must provide evidence that either their quality of care was appropriate or that it was not the cause the damages claimed by the plaintiff.
After both sides have presented their arguments, the Judge will provide the Jury with instructions on the law that assist them in reaching their verdict. The jury will then deliberate on a final judgment. As part of their judgment, the jury will also decide how much money to award the plaintiff if they find the defendant guilty of medical malpractice. In most states, damages that may be awarded are for both economic loss such as medical bills and wages and pain and suffering.
Post-Case Proceedings
Attorney Joseph Taraska explains that in most cases, doctors are insured with malpractice coverage that pays the penalty for their errors. After a doctor is found guilty of malpractice, they are usually allowed to continue practicing. However, in rare cases where the malpractice is particularly grievous or repetitive a state licensing authority may investigate the matter further and impose its own penalties. .
Attorney Taraska does note that in certain states the licensing authority may publish the results of settlements and verdicts as well as their investigation in a public record
public record.
Closing Thoughts
Most doctors practice with diligence and concern for their patients. However, mistakes do occur and when such leads to serious injury it should be investigated to determine if a medical malpractice suit is appropriate. As these matters are complex it may be in an injured persons best interests to have the matter evaluated by counsel with experience in this area of the law.
