The processing of a medical malpractice case is lengthy and involves several steps, or milestones. Let’s examine this process by laying out a roadmap of these steps:
Intake of Potential Case
Investigation of the Medical Records
Evaluation by Medical Experts
Filing of Complaint and Service of Summonses
Medical Malpractice Tribunal
o Interrogatories o Production of documents o Depositions o Request for admissions
Demand for Settlement
o Direct negotiations o Mediation o Arbitration
Intake of Potential Case. The potential client contacts our law firm and we interview the injured person and the members of the family. This provides the medical malpractice attorneys at Gorovitz & Borten with the opportunity to listen to the background of the disease, illness or condition; to understand what occurred during the actual care and treatment; to appreciate what the resulting injuries or damages were and how the injuries and damages have affected the patient and the family; and, to learn as much about the patient and the family as possible. This interview also provides the opportunity for the patient and the family members to ask questions of Dr. Borten and Attorney Gorovitz, so that they can better understand the process of a medical malpractice case, and to ask specific questions and express particular concerns about what has already occurred, and what they might be facing in the future.
At this time, if Gorovitz & Borten agrees to proceed with representation, an appropriate Contingent Fee Agreement is signed (as required by the Supreme Judicial Court) and Medical Release Authorizations are obtained that will allow the law firm to obtain all of the pertinent medical records.
Investigation of the Medical Records, The medical malpractice attorneys at Gorovitz & Borten undertake a diligent investigation, review and assessment of the case. The medical records of any prior care together with the subject care and subsequent care are requested, obtained and reviewed. The appropriate medical literature and textbooks (and medical experts in the specialty, if necessary) are consulted so that we have the most complete understanding of the standard of care that should have been provided. During this time additional records (such as employment records, tax returns, visiting nurse notes, pharmacy records, physical therapy records, etc.) are also obtained and reviewed. The medical malpractice attorneys at Gorovitz & Borten then make another assessment of the merits of the case to assure that the malpractice claim is properly supported by the medical records.
Evaluation by Medical Expert. After the medical malpractice attorneys at Gorovitz & Borten make a thorough review of the medical records, the related personal records (described in the preceding paragraph), and also review the applicable medical literature. We then contact the appropriate medical experts who practice in the field of the alleged medical malpractice (surgeon, obstetrician, neurologist, nurse) to obtain an independent review of the medical records. We then discuss the appropriate findings with the medical expert(s) and it is not unusual for Dr. Borten to personally meet with the expert reviewer to discuss the particular concerns or issues involved in a case.
The expert then issues an opinion letter, at times in the form of an affidavit, to be used in the Medical malpractice tribunal (see below). In so doing, the medical malpractice attorneys at Gorovitz & Borten are most comfortable that they have a case of clear medical malpractice in which the medical records, the medical literature and a consulting expert in the field of the medical malpractice concur.
Filing of Complaint and Service of Summonses, A Complaint is prepared and filed in the appropriate Court. At the time of filing the Complaint, Summonses are issued by the Court and served on each of the Defendants and their particular practice groups or hospital facilities, as appropriate. This puts all of the Defendants on notice that they have now been named as a Defendant in a medical malpractice case. At that time, the Defendants normally turn over representation of the medical malpractice litigation to their professional liability insurance carrier and the attorneys that are retained by the insurance carrier.
Medical Malpractice Tribunal, the convening of a Medical Malpractice Tribunal is usually the next step in the litigation process. The Tribunal is composed of a 3 person panel including a Superior Court Judge, a physician in the field of the medical malpractice (i.e. Ob/Gyn, Neurology, Internist, Pediatrician, Nursing, etc.), and an experienced civil litigator. By Statute, the purpose of the Medical Malpractice Tribunal is to receive an “Offer Of Proof” from our office which includes an expert letter from the Plaintiff’s expert, together with the related medical records, and hear oral presentation in order to determine of there is sufficient grounds on which to base further judicial inquiry (allow the litigation to proceed), or make the determination that there is either insufficient evidence to proceed or the outcome is simply an unfortunate medical result. This is a critical phase in the medical malpractice litigation process because it allows cases that have satisfied this requirement to proceed with the litigation, while requiring those that did not satisfy the requirement to either post a $6,000.00 bond or be dismissed from the litigation process altogether.
Discovery, If the case satisfies the requirements of the Medical Malpractice Tribunal, the discovery phase of litigation is actively engaged. During the course of discovery both sides have the opportunity to ask for Requests For Production of Documents; serve Interrogatories (written questions which require written answers) on all of the Plaintiffs and Defendants in the case; and, most importantly, to take the deposition of all of the participants in the litigation, as well as others who may have information or knowledge about the proceedings.
The unique training, education and experience that Dr. Borten and Attorney Gorovitz bring to their clients includes extensive medical, legal and trial training, knowledge and experience. As such, the discovery which is presented to the Defendants by Gorovitz & Borten, and the depositions which are taken on behalf of their clients, become a true test for the Defendants in the case. It is often been said by defense counsel that appearing for deposition at Gorovitz & Borten is quite similar to preparing for the Board Certification by the physician. Simply put, that is a compliment.
At the end of the discovery process, which normally takes some 2 years or so, a clear determination is made as to the standard of care that should have been provided; the nature of the care and treatment that was actually provided; the nature of the resulting damages; who the potential witnesses would be if the case goes forward to trial; what testimony would be expected from the fact witnesses, the Defendants, and the expert witnesses on both sides; and, a true assessment of the risks (and weaknesses) of the case.
Demand for settlement, A Demand For Settlement is customarily made by Gorovitz & Borten on counsel for the Defendants. The Demand For Settlement is usually an extensive written document, complete with supporting medical records and other materials, and is designed to present the strengths of the Plaintiff’s case (and the weakness of the Defendant’s case) before the insurance carrier and defense counsel. Quite often, many of our cases can and do settle at this time. Settlement is a welcome option to trial, since it allows the client and the law firm to intelligently participate in a non-binding negotiation process. Sometimes the negotiations are handled between counsel, but often times mediation is utilized. If a particular sum is achieved during these negotiations that fully and fairly compensates the Plaintiff for their injuries, and the Plaintiff is willing to accept that sum, then the settlement has been successful and the case is concluded.
If the settlement process has not been successful, then Gorovitz & Borten is fully prepared to proceed to trial. However, it must be pointed out that the results at trial are neither certain nor guaranteed. The best that can be said about the trial process is that it is lengthy, emotionally draining, and the outcome is entirely uncertain and risky.
Trial, If the case proceeds to trial, then extensive preparation will take place that involves the active participation of the injured party and family members with members of the firm. The trial will normally take place in Superior Court, and requires the in-Court attendance of the injured party and some family members each and every day of trial which could last anywhere from 1-2 weeks. At the end of the trial, with deliberation by the jury, the waiting can be quite emotionally draining and excruciating. As we said before, the outcome of even the strongest, best prepared cases, and the best tried cases, is risky and uncertain. As such, the opportunity to settle cases is a welcome alternative that assures a recovery – provided it is appropriate, fair and just.
Gorovitz & Borten welcomes the opportunity to review and explain the medical malpractice litigation process with it’s clients. This is an ongoing, continuous process that could span some 3-4 years from the start of the litigation through trial. Settlement can happen at any time that the litigation process is underway, but normally does not occur until after the Tribunal has rendered it’ s decision and meaningful discovery (especially depositions of the Defendants) has taken place. Even the best prepared cases do not settle unless the insurance carrier believes that it’s risk of proceeding to trial is greater than the cost of settling the case earlier by negotiation or mediation. If the insurance carrier feels that the care and treatment provided by it’s insured medical providers is defensible, then it is certain that the case will go forward to trial.
Medical providers are responsible for the diagnosis and management of complications that arise during the medical care they provide. If you believe that you, your child or your loved one have been misdiagnosed, are victims of medical malpractice or wrongly treated and suspect the complications may be the result of a medical provider’s error that was diagnosable, avoidable and/or preventable, you may have a valid cause of action. The injury may be the result of a medical provider's mistake in handling your condition and the result of medical negligence. Dr. Borten has over 35 years of experience as an obstetrician and gynecologic surgeon to fully evaluate the merits of your potential case. Allow the Boston area medical malpractice attorneys at Gorovitz & Borten help you assert your rights and get the compensation you deserve.
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