We put our lives in the hands of our healthcare providers, literally. As such, it is literally a matter of life and death when they make a mistake. Missouri, like most states, has created a procedural legal minefield for any would-be malpractice plaintiff to discourage all but truly serious claims. Experienced malpractice lawyers are not optional, and your best choice in Kansas City is The Nail Law Firm.
What to Expect When Hiring Malpractice Lawyers
When you go to your initial consultation, you should bring everything– everything— related to the case. All the papers, however minor. All the email and computer files. Photos, diagrams, charts, bills, letters, notes, calendars; bring it all and let your attorney sort it out. It’s sometimes surprising what can turn out to be what the whole case turns on. When in doubt, bring it. It’s also useful if you create a timeline of events so your lawyer can put events, conversations, and documents in context.
State-Specific Statutes in Kansas City and Throughout Missouri
Missouri also has a limit, or cap, on non-economic damages. These are also called “general damages,” and they’re awarded for things that can’t really be quantified, such as “pain and suffering,” anxiety, sleeplessness, etc. These are capped separately for “catastrophic” injuries (injuries causing a severe lifetime disability) and “non-catastrophic” injuries. This does not include “economic” damages or “special” damages– items that can be put into dollar amounts, such as medical care or loss of earnings.
Where Do Malpractice Lawyers Start?
Malpractice actions are long, arduous, and expensive. Before a lot of time, effort, and money are wasted, a malpractice attorney will conduct a thorough assessment of the merits of your case. Some things this may include are: reviewing your medical records, interviewing witnesses, and consulting experts and relevant medical literature.
What Makes a Meritorious Case?
The burden of proof is on you as the one filing the petition with the court, and negligence and malpractice can be difficult to prove because you have to prove all of the following:
- Existence of a doctor/patient relationship
- Duty of care (clearly acting in their professional capacity as a healthcare provider)
- Breach of duty (insufficiently thorough or competent care)
- Damages (your injury, disability, or other harm)
- Causation (that the incompetent or insufficient care caused the harm)
You must show evidence, usually by having an expert testify on your behalf, that the healthcare provider failed to meet their “standard of care”– that they didn’t do what a reasonable healthcare provider in a similar situation could reasonably be expected to have done. You must prove harm was done, and that the harm was directly caused by your provider’s incompetence.
Your Attorney Believes You Have a Case– Now What?
If your attorney thinks you have a legitimate case under the law, then it is time to call in an expert. Expert witnesses in Missouri must be licensed healthcare providers, actively practicing (or within five years of practicing) the same specialty as the defendant. The expert will review the same materials as your attorney and, if he or she agrees there is a viable case, will prepare an Affidavit of Merit to that effect. If more than one defendant is involved, a separate affidavit for each must be prepared.
Your attorney will prepare the actual lawsuit document along with other documents that need to accompany it. It will be filed with the court and delivered (“served”) to the defendant(s) or their legal agents. The Affidavit(s) of Merit must also be filed within 90 days of the complaint.
The Discovery Phase
After the complaint has been filed and responded to, attorneys on both sides will start a fact-finding process called “discovery.” There are two main forms of discovery: documents and depositions.
Your attorney will send these to the other side and their responses will become evidence. These could take the form of:
- Interrogatories (lists of questions)
- Requests for Admissions (lists of yes-no questions)
- Request for Production of Documents (making available any and all documents in any form that have anything to do with the case)
Similarly, the defendants’ attorneys will send them to you and your attorney, and you will need to provide responses and your own documents.
Depositions are like previews of trial testimony. One of the representing attorneys sits down with a party or witness (the deponent), usually with their own attorney present, as well as a trained stenographer to take an official transcript, and questions the deponent under oath. Your attorney will take the depositions of each of the defendants and their witnesses. The counsel for the defense will likely depose you and your witnesses.
Expert witnesses on both sides will also be deposed. Each side’s expert helps their respective attorney prepare questions for their opposite, and the attorneys prepare the experts on what to expect and how to frame their answers.
Negotiation and Settlement
At any point, both sides can reach an agreement between themselves, called a settlement. In fact, most litigation ends in settlement, because both sides would prefer not to take their chances on an expensive trial that’s subject to the whims of a jury.
If the two sides cannot come to an agreement between themselves, they will sometimes pursue what’s called “Alternate Dispute Resolution” (ADR). One form of ADR is mediation, which is where the parties sit down with an agreed-upon neutral mediator (typically a former judge) who will listen to both sides of the case and help them meet somewhere in the middle. Another form of ADR is arbitration, where a person or panel makes a binding decision in place of the court.
If no settlement can be reached, the case will go to trial. Trial preparation is a lengthy and arduous process itself; exhibits must be gathered, listed, and published for all parties and the court; jury selection navigated; witnesses notified and, if necessary, subpoenaed.
If you think you have a malpractice case, understanding the process is a good place to start. A good lawyer’s job is to walk you through the process. That way, you know what to expect and can avoid being taken by surprise.
Any litigation is full of legalese and “trick” questions, and malpractice is no different– but the stakes are much higher. Obviously, no amount of money can heal you or your loved one or bring someone back, but it can help with medical bills, replacing your salary if you were out of work or lost your job, and (if necessary) funeral and burial expenses. Don’t go bankrupt over someone else’s mistake; call The Nail Law Firm for a consultation today.