The sad irony in medical malpractice cases is that the people most catastrophically injured by another’s negligence are the ones whose cases are likely to take years to resolve. That delay can be agonizing, as these individuals desperately need the proceeds of a settlement or verdict to pay their astronomical medical bills and to purchase the durable medical equipment, home care, and inpatient care they may need for the foreseeable future, if not the rest of their lives.
For that reason, it’s not uncommon for plaintiffs to grow restless as months pass.
In a catastrophic medical malpractice case, plaintiffs and referring attorneys should not mistake slow progress for no progress. These cases typically take two to three years to resolve from the date suit is filed, and the pre-suit investigation can add six to eight months before that. Their duration and pace are based on the work plaintiffs’ counsel must do to build the case, including forcing defense counsel and defendants’ insurers to honor procedural rules, such as discovery obligations and deadlines.
What follows is a look behind the curtain at how experienced attorneys work up medical malpractice cases over this two-to-three-year period, with the caveat that litigation timelines in these cases will vary by jurisdiction and by the facts of each case.
First, a medical malpractice case must be carefully vetted
The catastrophic injuries at the heart of medical malpractice cases are as medically complex as they are life-altering. These injuries commonly include brain injuries, such as hypoxic-ischemic encephalopathy and other birth injuries, along with damage to the spinal cord and central nervous system.
Thus, the first real work in a medical malpractice case happens before plaintiffs’ counsel files suit. A prospective client calls, describes what happened, and often sends over their medical records, which in a catastrophic medical malpractice case can run to thousands of pages. We currently have two cases with 16,000 pages of medical records! Deciphering an operative report, a nursing flow sheet, or a medication record is closer to medicine than to law.
Most attorneys do not have the medical background to review those records and determine whether they suggest a prospective client has a meritorious case. That’s why attorneys frequently hire experts to review the records and provide their recommendations on the merits of the case. A physician-attorney, by contrast, can read the operative reports, flow sheets, and imaging directly, which shortens this stage and sharpens the questions later put to retained experts. Reviewing these records, particularly when a retained expert is involved, could take weeks or even months.
Once the records have been reviewed, a medical malpractice attorney will have a frank conversation with the plaintiff and their family about the realistic paths forward and the likelihood of success for each. Sometimes that conversation is a hard one: some devastating injuries are not the result of legally actionable malpractice, and saying so before suit is filed protects a client from years of litigation built on an unsound foundation. Once the options are reviewed, the attorney suggests a viable path forward, and the client agrees with that path, the attorney can get to work.
Vetting cannot be leisurely. Statutes of limitations impose hard deadlines, and many jurisdictions add pre-suit requirements of their own. In Maryland, for example, a claim must first be filed with the Health Care Alternative Dispute Resolution Office and supported by a certificate of a qualified expert. In Virginia, counsel must certify that a qualified expert has reviewed the case and found a deviation from the standard of care. And in the District of Columbia, health care providers must receive advance notice before suit is filed. Satisfying these requirements takes time, and that time is built into the front end of every case.
As part of the vetting process, a complete set of medical records must be obtained
To assemble the foundation of a plaintiff’s case, medical malpractice attorneys must acquire and review the complete set of medical records. Rarely do plaintiffs have that complete set when they first contact an attorney.
A process that seems purely ministerial and straightforward has become anything but. Over the last half-decade, securing clients’ medical records from hospitals and other healthcare facilities has become increasingly difficult for medical malpractice attorneys. The process has become harder-fought and more drawn-out, which delays the progress of a medical malpractice case.
The pattern is unfortunate and frustrating. A medical malpractice attorney sends a proper request for medical records to the facilities that treated their client. The materials that come back are frequently missing the specific records that would make or break the case. For example, the medication administration record, or “MAR,” which shows which drug was given, when, and at what dose, goes missing in case after case. Fetal monitor strips, which can be central to a birth-injury claim, rarely show up even when an attorney requests “all records.”
Part of the explanation is structural. Modern medical records rarely live in a single system: the principal electronic health record may not contain pharmacy records, laboratory data, radiology images, fetal-monitoring strips, emergency medical services run sheets, or documents held by third-party vendors. An initial production can be voluminous and still be incomplete.
To many plaintiffs’ attorneys, the pattern also looks like self-protection. As soon as a facility knows there’s a meritorious malpractice claim against it, it works with its internal and external attorneys on litigation strategy. Many plaintiffs’ attorneys would tell you that this strategy includes delaying the production of documents that support a malpractice claim. Often, the only way to get them is through repeated demands, and sometimes by court order.
Experienced counsel responds by auditing the production rather than accepting it—building an inventory of what was produced, comparing it against the known clinical course, and hunting for references to documents that should exist but were not provided. A physician’s note may cite an imaging study that is absent from the chart. A nursing entry may mention a medication with no corresponding administration record. A discharge summary may describe a consultation that appears nowhere else. Each gap becomes a targeted supplemental request and, once suit is filed, a subject of formal discovery.
For clients, this early period of their medical malpractice case may feel like the first stretch of time when nothing is happening. In reality, their medical malpractice attorney is often engaged in a document-by-document fight to assemble the very foundation of their case.
Next, Experts Must be Vetted and Selected
Once their client’s complete medical records are in hand, a medical malpractice attorney turns to experts. This is another time-intensive endeavor, during which clients may not perceive much progress being made.
For a plaintiff’s attorney, the goal is not simply to find a credentialed expert with impressive stage presence during depositions and at trial. Their goal is to find a credible, knowledgeable expert for their client’s specific medical issues, whose analysis will survive intense scrutiny by opposing counsel and their experts.
In a medical malpractice case, experts’ subspecialties are everything. A neurosurgeon with an impressive resume is useless on a spinal-cord case if all they do is operate on brains. In a recent case at my firm, we needed a nursing expert for a case arising out of an urgent care center’s alleged negligence. It wasn’t enough that the nursing expert we retained was licensed, eloquent, and likable. What mattered was that she actually worked in an urgent care center. To be persuasive, experts have to have real experience with the precise problem they are being asked to review.
Vetting goes well beyond the CV. I once received an exhaustive CV from a surgeon affiliated with a nationally recognized institution who had performed thousands of the exact operation at issue. He was a promising candidate—until a simple internet search showed he had left that institution under a cloud. He may still be a fine surgeon, but attorneys can rarely afford to put a witness on the stand whose credibility could be destroyed by a cross-examination focused on an old scandal.
The same discipline applies to an expert’s writing. If a doctor has published an article with a conclusion that contradicts an attorney’s theory of their case, an expert opinion that goes against that conclusion is likely to be attacked by opposing counsel. To avoid this, attorneys must review prospective experts’ prior writings and use tools designed for this, such as deposition repositories that let attorneys read an expert’s prior testimony and see how they fared against opposing counsel.
The most persuasive experts are rarely those who advertise themselves to attorneys as being “jury-friendly”; they are instead often good clinicians and teachers, such as physicians who train residents and medical students. An expert who advertises that they provide “jury-friendly testimony” has essentially handed opposing counsel a script for an effective cross-examination. Attorneys should also consider retaining two experts for every major issue. If not, and a sole expert falters, the case may collapse with them.
Then, the Parties’ Theories of a Case are Built and Tested
With experts in place, the case enters its most labor-intensive phase. The parties will work closely with their experts to help shape the documents requested during discovery and the questions asked at depositions so that the information elicited by both helps lock in the facts on which the case depends, such as the precise timeline of when a post-operative patient should have been treated and when they actually were.
Then comes the formal exchange of expert opinions from experts expected to testify at trial, which is mandated under federal and many states’ analogous rules of civil procedure. These reports are exhaustive. A single expert’s statement can run ten to twenty pages, single-spaced, aside from the required list of prior cases and their CV. In a case with many experts, the parties could have hundreds, if not thousands, of pages of expert reports to review. Once the parties receive the other’s expert reports, they will work to contradict the other experts, point by point, and then both sides will depose the other’s experts.
This time-intensive work goes on with little involvement from or awareness by clients.
Finally, the Case is Settled by the Parties, or it Goes to Trial
The vast majority of medical malpractice cases settle rather than go to trial. More often than not, a settlement occurs closer to trial than to the day a plaintiff files suit. Clients may perceive the elapsed time as unreasonable, but that time is often the very reason the case settles.
The timeline of a case, set forth in a court’s scheduling order early in a case, which spells out when fact discovery, the naming and deposing of the experts, and a pretrial conference will take place, is often stretched over the following eighteen months to two years. This is deliberate because the timeline allows the parties to evaluate the strength of each other’s case.
Many cases settle at a mandatory settlement conference or through a private mediation led by a seasoned lawyer or a retired judge. Strong settlements are the product of trial readiness: defendants and their insurers pay full value only when they believe plaintiffs’ counsel has built a case that can be tried—and won—before a jury. Juries are conscientious, but when the medicine is difficult, the outcome carries real uncertainty for both sides. Mediation allows experienced counsel and a neutral to price that risk, and a well-timed settlement converts a trial-ready case into certain, immediate compensation for the client.
Preparation for settlement takes additional time, as does preparing for trial if the parties cannot resolve the case beforehand. Ironically, medical malpractice plaintiffs may run out of patience just as their attorneys are working around the clock to settle it or take it to trial.
Keeping a Client Informed While Their Medical Malpractice Suit Proceeds
Attorneys and their colleagues tasked with client relations should understand that as their clients’ medical malpractice cases work through the litigation timeline, clients may interpret silence as inaction. This is, of course, far from what’s actually happening.
To prevent this, and the problems it can cause, law firms should require their attorneys or staff members to talk to clients regularly about their cases. For example, as a goal, law firm personnel should speak with clients at least monthly to discuss their cases, and more frequently when there are active developments, such as an upcoming deposition or a mediation. Between those check-ins, clients should know that they are welcome to call with a question, for which they’ll receive a prompt answer; they should never have to wait for the next scheduled call. The same holds for a referring attorney, who should be able to speak with co-counsel and get a straight answer about where a case stands.
Client service is not an academic concern. Throughout my career, I have had clients retain my firm after leaving another firm because of poor client service. One client retained my firm after calling their attorney for months and never hearing back. When they finally reached someone, it was a paralegal. Paralegals are valuable, but most clients ultimately want their legal questions answered by their lawyer.
For a referring attorney, poor client service can be especially problematic. When the handling firm goes silent, the client’s frustration lands back on the lawyer who made the referral.
Some capable attorneys try to build systems so as to talk to clients as little as possible. That’s the wrong approach. Talking with our clients to understand their situation and walk them through the progress of a case is one of the best parts of this work. It is not a chore to automate away.
A catastrophic medical malpractice case takes years to resolve because building it correctly takes years. For an injured client, that patience is ultimately what allows the case to fund a lifetime of care.
Dr. Michael M. Wilson is the founding attorney at The Law Offices of Dr. Michael M. Wilson M.D., J.D. & Associates, where he has spent four decades representing victims of medical malpractice. He can be reached at wilson@wilsonlaw.com.
