Gorovitz & Borten, P.C.
Attorneys at Law

550 Cochituate Road, Suite 25
Framingham, Massachusetts
Tel: (781) 890-9095
Stages of a Medical
Malpractice Case
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
  • Discovery
o        Interrogatories
o        Production of documents
o        Depositions
o        Request for admissions
  • Demand for Settlement
o        Direct negotiations
o        Mediation
o        Arbitration
  • Trial

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

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
Contact Information
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(when possible), please contact us by phone, fax or e-mail with your question
or concern.

Telephone:  781-890-9095     -     Fax:   781-890-9098
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