After all of the medical and surgical records have been reviewed by expert medical consultants and it is determined that the client has suffered significant injuries as the result of medical malpractice, the next step in the claims process is the Pre-Suit Procedure.
Unlike other injury claims, you can’t proceed to filing suit against the negligent health care defendants until the pre-suit requirements are met. What is called a 90 day letter of intent to file a suit must be sent to all of the probable defendants. The letter must contain affidavits from all of the client’s experts advising that they have reviewed all of the pertinent records and they feel that the health care rendered by the client’s providers was below the standard of care.
Also the letter will set forth the injuries sustained by the client as a result of the violation of the standard of care. In addition, the attorney may submit questions to be answered by the providers regarding the facts and issues in the claim. The attorney may also request documents from them that might be important to the claim. The health care defendants are supposed to respond to the letter and the requests within 90 days of the receipt of same.
The defendants may do one of three things during the next 90 days. They may participate in the process and submit their own questions and requests for certain documents and information to the client. They may answer the client’s questions and requests. They will then have experts of their own review all of the client’s information and records and submit affidavits regarding their conclusions regarding the claimed violations of the standard of care. After all of this is completed, the doctor’s attorney will answer the letter of intent and submit their experts affidavits and, in most cases, will deny any wrongdoing that violated the standard of care. In my years of experience, the defendants rarely admit fault or responsibility in their answer.
Also, the defendants can do nothing and just let the 90 days pass without any response. Also they can simply admit fault and provide no other information. This rarely happens. Once the denial is received or the 90 days passes, whichever comes first, then the client can finally file suit and proceed with litigation.
Deciding to proceed with litigation should be carefully considered. MedMal litigation is extremely expensive and very time consuming. The expenses, in some cases, can exceed $100,000. or more. The time from sending the letter of intent to trying the case to a verdict can be as long as two years or more. Also most jurors dislike lawsuits against doctors and hospitals. You must have a very strong case and significant injuries and disabilities to have any chance of prevailing. These types of cases are usually handled on a contingent fee basis and if there is no recovery, then there is no fee or costs owed to the client’s attorney. Therefore, the client’s attorney must be extremely selective in deciding to proceed with a medmal claim.