Now that I Am Suing, What is the Process?

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By Jan Marin, Senior Associate & Lawyer   We seek medical help to achieve one of three outcomes: maintaining our good health, getting better if we are ill or injured, or finding ways to manage our chronic conditions to help us live as comfortably as possible. Sometimes situations happen when the outcome is less than positive. Then we are left with questions that do not always have easy answers. What if we emerge from medical care in a worse state than when we arrived? Is this simply an unfortunate (but sometimes unavoidable) part of life? Or did a medical provider make preventable errors that caused us pain, suffering and injury? If you are asking these questions, either for yourself or for someone you love, you may want to consult with a medical malpractice lawyer to help you find answers. In this blog post, I outline some of the steps you can expect to encounter as you decide whether to sue a medical provider.   Initial Investigations In an average lawsuit, the entire process is a fact-finding mission. But in medical malpractice cases, there is always an initial investigation to determine if the facts suggest a medical practitioner likely breached standards of care due to negligence or incompetence. Doctors can make errors and sometimes their errors can cause serious harm to patients.  An investigation will help to find out if another medical provider with a similar level of training who was facing similar circumstances might make the same decisions or face the same challenges and that helps us determine if there may or may not be a viable case.   Expert Advice for Complex Files Medical knowledge is very specialized and complex. Therefore, it is important to call on medical experts from Day 1 of an initial investigation to evaluate what is found in a client’s medical records. Clients are protected by this process because they will learn whether independent experts believe there might be merit to their case. A law firm that specializes in medical malpractice will have access to a network of experts to contact as soon as the initial investigation gets underway. Building and maintaining these kinds of connections is an important part of the work we do.   Statement of Claim, Defence and Discovery Once you decide to start a lawsuit, your medical malpractice lawyer will be responsible for drafting and filing a statement of claim. Hospitals, doctors or other medical practitioners only receive official confirmation of a lawsuit when the statement of claim is issued. Therefore, participating in an initial investigation is very low risk for clients. If you decide not to sue, medical providers will likely have little or no idea that you even considered the option. When medical providers and their legal representatives receive a statement of claim, they will respond with a statement of defence. At this stage, the discovery process begins. This exchange of information helps each side in their effort to either prove the case or provide a defence. While an initial investigation focuses on the specific medical error, the discovery process (including an oral discovery) has a wider scope. Here lawyers examine aspects such as a client’s general health (pre- and post- incident), loss of income, or lost time in school to help assess damages. Of course, medical malpractice lawyers will always protect a client’s privacy during this kind examination.   Timelines You may be wondering how long this process will take. While there are general guidelines and rules for when statements of claim and statements of defence must be filed, the timing of other steps in the process can vary widely. A statement of claim in a medical malpractice case must be filed within two years of when a person sustains an injury, or two years post-age 18 for children (we will discuss this important time limit, called a Limitation Period, in a future blog post).   With You From Beginning To End Your lawyers will always look for ways to resolve your case in advance of court if possible, but experienced medical malpractice lawyers know they must always be prepared for any eventuality and take the necessary steps to achieve a positive result for their clients. We understand how emotional and stressful it can be to make a decision to pursue legal action. We’ll be there to help you find the treatments and therapies you need, support you throughout the legal process, and continue to check in with you after a settlement or judgment to see how you’re doing. It’s part of our team’s promise of full-circle care to our clients and all who walk through our door.


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