Medical Malpractice

Every medical malpractice case takes a different amount of time depending on many factors.  In general, and especially right now, it is best to assume the case will take two to three years to complete.  This is very dependent on the location where the trial will be held.  Some courts have available trial dates much sooner than others.  Because medical malpractice cases generally take multiple days, that also makes them harder to schedule and lengthens the overall time.

In Virginia, you generally have two years from the date of malpractice to file a claim.  This can be longer depending on the particular circumstances, but the general rule is two years.

Once we have the records, we have to review and organize them.  Depending on how complicated your medical care has been, those medical records can easily be thousands, sometimes tens of thousands of pages.

We are looking for important data points (like lab work, x-rays, operative notes) that are relevant to the type of claim we are investigating. 

At that point, we also refine our search for medical literature and published safety rules about how to handle a patient in similar circumstances. 

It is true that most medical malpractice cases in Virginia move slowly through the process.  It starts with gathering medical records.  The fastest you can expect to receive medical records is fifteen days from when a health care provider receives your request for records.  By federal law, they have thirty days, which most of them try to use.  Some of them only provide partial records, so we have to follow up.  Some of them do not provide your records in a timely way, which is another reason we may have to follow up.  In some cases, we even have to file complaints with the government just to obtain all the medical records.  When all is said and done, it is sometimes months before we have all the medical records we need to review.  That is just the first step to investigating a medical malpractice case.

Another time hurdle for these cases is setting a trial date.  To set a trial date, a lot of people must be available at the same time.  The people who must be available include each attorney who is involved, all the parties (the patient-plaintiff and the doctor-defendants), each party’s experts, and, most importantly, the court.  If a case can be tried in just one day, then it would be much easier to set a trial.  For medical malpractice cases, we usually need at least three days and sometimes much more.  In order to find that kind of time on the court’s calendar, we are commonly looking at least six to nine months out and sometimes much farther.

Because we know there are some parts of getting a case resolved that we cannot control, we try to be as efficient as we can about the parts we can control.

In Virginia, with very few exceptions, expert witnesses are required to prove the elements of a medical malpractice case.  Exceptions exist when the bad care is so obvious that anyone would know it is wrong without any medical or nursing training.  But even though the negligent care may be obvious, even in those cases you usually need experts to talk about how that bad care caused harm to the patient.

There are many factors that go into determining an appropriate case value.  It is very rare to have enough information early in a case to be able to determine the true value.  It is understandable that people want to know the value of their case, but it is also important to only answer that question when we can provide a meaningful answer.

Many people want to know whether they have a case during our first conversation.  For the majority of medical malpractice cases, it is not possible to truly answer that question.  Usually, the best that can be said at that point is whether it is something worth investigating.  In most cases, be wary of an attorney who, without seeing any medical records and studying medical literature, feels confident you have a case.

The most common cause of medical malpractice claims is poor communication.  This translates into several types of claims; failure to diagnose and misdiagnosis are very common.  Also, poor communication between health care providers can also cause mistakes.  This can result in errors during surgery, medication errors, and other errors for care that relies on healthy communication, like between nurses.  

Unfortunately, birth injuries are also fairly common.

In general, if you had only minor injuries or were left with no lasting effects, it will be harder to pursue a medical malpractice case.  This is not because the negligence was not serious or that your injuries are not deserving of compensation.  It is this way because medical malpractice cases in Virginia are very expensive.  If your injuries are minor or totally resolved, it means your claim will be seen as worth less.  That means the cost to pursue your case could be more than you might get.

Medical records contain many mistakes.  A death certificate once reported that a woman who died in her 80s was pregnant.  She was not.  While mistakes are common, it is always more helpful if the medical records are accurate.  When they are different than what you recall happening, it creates an additional hurdle for your case.  It means the jury has to decide what actually happened.  There are so many other hurdles in medical malpractice cases, that it is better if the records are consistent.

In a wrongful death case, there is a specific group of people that Virginia law allows to recover for their loss.  Sometimes the people who were closest to the person who died are not part of that group.  If the group of people who could recover were not close to them, and especially if they were not in contact at all, the value of the claim will be less.

Don’t worry.  In Virginia, you cannot consent to negligence.  Signing the form does not mean you cannot pursue a claim.

We prove a doctor’s negligence using testimony by expert witnesses, other doctors who do the same type of medicine.  We also use medical literature, textbooks, and guidelines.  For instance, there are very clear rules about how to handle patients suspected of having a heart attack or stroke.