Medical Injury Lawsuit

Although not all lawsuits follow the same course, a basic process exists that is common to all lawsuits.

Choosing a Law Firm and Getting Started

In most cases, the process begins with the selection and hiring of a competent attorney. The attorney selection should be based on the verifiable track record of the attorney or law firm in question and should not be based solely on representations made by a member of the firm. In a pharmaceutical or medical product liability claim, the first undertaking by the attorney will be the gathering of medical and/or pharmacy records. This is a necessary step to get the process started so that the attorney can confirm the use of the dangerous drug or product and the adverse result you experienced.

Choosing the Right Court

After collecting medical records and confirming that your case meets the threshold requirement for pursuing a claim, the attorney will draft and file your lawsuit in the appropriate court. The suit may be filed in the state where you live, or it may be necessary to file it in a different state. The venue decision is made by your attorney after researching and examining the facts of the case and determining the most appropriate forum for your case.

Filing the Lawsuit and Serving the Defendant

The first step in a lawsuit is to file a document as a notice and commencement of the lawsuit. This can be in the form of a Complaint, a Petition or a Writ depending on where the lawsuit is filed. This is often accompanied by a Summons notifying the Defendant pharmaceutical company that it has been sued. After the suit has been filed with the court, the Summons and Complaint or the Writ or Petition together with the appropriate service documents is served upon or delivered to the Defendant.

The Defendant Answers

Following service of these documents, the Defendant has a specified time frame in which to file an answer. The Defendants answer may vary depending on the rules of civil procedure for the court in which the suit was filed. In some state courts, a Defendant may file a general denial. In courts in which the suit is commenced with a Writ and Notice of Suit, the Defendant’s response may simply be a request for the Plaintiff to file a formal complaint. In federal court, the Defendant must identify which statements or allegations in the Complaint they agree with or admit and which they contest or deny. The Defendant’s answer may include any defenses they claim in response to the Plaintiff’s allegations or may file a cross-claim against the Plaintiff.

The Discovery Process

After the Defendant has answered the suit the discovery process begins. The deadlines and procedures may vary slightly from one court to the other but the general process remains the same. During the discovery process, the parties exchange information about the issues raised in the lawsuit. Discovery generally takes one of three forms: written questions (Generally referred to as Interrogatories and Requests for Admissions), production of documents and tangible items, and depositions. A deposition is a form of interview wherein the witness answers questions under oath in the presence of a court reporter who transcribes the testimony to create a complete record of the process. In most cases, the discovery is directed to the opposing party; however discovery requests may be directed to witnesses, experts or medical providers.

In a pharmaceutical or medical products claim the parties will submit discovery requests seeking records or information about the Plaintiff’s medical treatment or history. Depositions will be taken of the parties but also of medical providers, the custodian of records for the provider’s offices and expert witnesses. Sometimes discovery will be conducted in the form of a Deposition on Written Questions accompanied by a request for documents. All discovery must be answered under oath. The information exchanged in the discovery process serves as the basis for developing the evidence and testimony to be used at trial.

Disposing of a Case Without Trial

In many cases the parties will file motions in an attempt to end the case or eliminate certain issues before trial. Some examples are motions to dismiss or motions for summary judgment. When a motion is filed, the court must determine whether or not the evidence presented in the motion is sufficient to dispose of the case or the issues raised. Motions are determined by applying the law to the facts presented. If disputed facts are presented to the court, the motion should be denied so that the fact question may be decided by a jury.

Alternative Dispute Resolution (ADR)

Many cases will go through a form of alternative dispute resolution, either by joint decision of the parties or by court order. These options are less formal that the trial process and may be completed at any time during the process without the need to wait for a trial date to arrive. The options for alternative dispute resolution are mediation and arbitration.

Mediation is an aided negotiation process for reaching settlement. In a mediation, a third party mediator works with the Plaintiff and Defendant in an effort to facilitate settlement. The mediator has no power to bind the parties or make decisions on the outcome of the claim but may discuss with each party the strengths and weaknesses of their case in an effort to encourage settlement.

Arbitration is like an informal mini-trial. In arbitration, each side presents their evidence to either a single arbitrator or a panel of arbitrators. The arbitrator listens to the evidence, examines the applicable law and rules on the case. The decision of the arbitrator is binding on all parties, except in certain circumstances when the arbitrator’s decision may be appealed to the judge of the court in which your case is pending.

Trial

If your claim survives motion challenges and is not settled in an informal manner, it will proceed to trial. The most important decision in preparing for trial is whether or not to request a jury. If a jury is requested, the first step in the trial process will be jury selection. Once a jury is chosen, the trial can begin. During trial, both the Plaintiff and Defendant will have an opportunity to present evidence, testimony and arguments supporting their claim or position. After the conclusion of the presentation of the cases, the judge or jury will make a determination to resolve the issues in the case. A jury will be given specific questions to answer that will guide their decision. If the judge or jury finds that the facts and evidence support the Plaintiff’s claim, they will determine the amount to be awarded to compensate the Plaintiff. If a decision is made in favor of the Defendant, the Plaintiff is awarded nothing.

Appeal

Either party may appeal the verdict, or decision of the judge or jury to a higher court. This is a long and tedious process and the appellate court generally will not overturn the ruling of the judge or jury because they were in the best position to decide the outcome of the case, after seeing all evidence presented in the case.

Judgment

If an appeal is not sought, or after the appeals process concludes, a judgment is entered in favor of the prevailing party. A monetary judgment in favor of the Plaintiff must then be satisfied by the Defendant.

For a free consultation with an experienced attorney, contact a medical injury attorney online or phone Arnold & Itkin LLP toll free at 1-866-222-2606.