Understanding the Medical Malpractice Process
Medical Malpractice is one of the most challenging of claims to pursue, and the stakes are often very high. If you believe you, or someone you know, has been the victim of Medical Malpractice, understanding how the process will proceed is important.
Time is of the EssenceIn Ohio, the statute for medical malpractice survival claims (claims where the victim did not die from the negligence, or for the pain and suffering aspect prior to death) is only one year. Wrongful death medical malpractice claims are two years. This means an attorney representing you has limited time to gather information, evaluate the claim, and, if said attorney believes there is negligence present, get a medical expert onboard with the claim. The sooner you seek representation after possible medical malpractice, the better.
The Affidavit of MeritYou will hear this. Attorneys evaluating the claim will explain that in Ohio, to proceed with a medical malpractice claim, you will need an affidavit of merit. Ohio Rules of Civil Procedure 10(D)(2) requires it. What it is is an affidavit from a medical expert familiar with the standard of care in the instant matter offering the opinions that the standard of care was breached, and that the breach of the standard of care caused injury to the patient.
To get an affidavit of merit to file with the complaint as required, the expert must have access to the relevant medical records. Again this reinforces the importance of early consultation with an attorney so that records can be gathered. A complaint filed without an affidavit of merit or a motion to extend time to file the affidavit of merit will be dismissed without prejudice. Conversely, if the affidavit of merit is not produced within the timeframe granted by the court through the motion to extend the time to file it, the complaint will also be dismissed without prejudice.
A Complaint Will Have to be FiledMaybe in the olden days hospitals and doctors attempted to settle medical malpractice claims before the plaintiffs had to file suit. But not now. Just know that once you have an attorney working on the case, to a 99.99% certainty, they will have to file a complaint. Hospitals, doctors, and their insurance companies, do not settle these types of claims before a complaint is filed. They will drag on and on the process as long as possible. Be prepared to get into litigation through filing of the complaint, and engaging in significant discovery- including depositions, written answers to questions, turning over documents. It's all part of the process of litigating these claims.
Trial Comes With a High RiskEven once you have the affidavit of merit, and have filed the complaint, and have done full discovery, and have presented your own expert witness reports, success at trial is not guaranteed. Approximately three quarters of medical malpractice cases that go to trial result in a verdict for the Defendants. Juries are simply hesitant to hold doctors and hospitals accountable in all but the most egregious occasions.
This does not mean that you should simply accept whatever is offered. But it does mean understanding the risks of going forward through a trial. They are simply unpredictable, and risk is high. This is the time to rely on your own attorney to make an educated decision about how to proceed, particularly if there are offers to settle the case being extended. Attorneys do this for a living. They should be able to provide you an honest assessment of whether any offer is reasonable considering the circumstances present, and what the specific risks of proceeding to trial are on any given case.