Once it is determined that there is a legal and medical basis to proceed with a medical malpractice lawsuit, our attorneys will identify those specific physicians and health care providers who must be named in the lawsuit. At that time, our paralegals will work with our attorneys to draft and file a Summons and Complaint with the Clerk of the Court where the case is venued. The Summons will advise the named defendants that a lawsuit has, in fact, been filed in a New York State Supreme Court. The Complaint will allege, in a general manner, that the named defendant doctor and/or health care provider was negligent and as a result, and as a result of that negligence, you have sustained serious and permanent injury. Additionally, our attorney will file with the Court a Certificate of Merit indicating that we have consulted with a physician who has opined that there is basis upon which to proceed.
After obtaining an Index Number from the Court, our paralegals will arrange for the actual service of the Summons and Complaint upon the various named defendants. Once the defendant(s) receive the Summons and Complaint, they are obligated to forward the Summons and Complaint to their insurance companies who will then hire lawyers to represent them in the lawsuit.
The defendant’s attorneys will serve us with a Verified Answer to the Complaint along with discovery demands. The Answer will invariably be a general denial of our allegations. The discovery demands will include a demand for a Bill of Particulars. A Bill of Particulars is a document that we prepare on your behalf which, in detail, sets forth our claims as against each and every named defendant. It further sets forth our theories of liability and advises the defendant attorneys of all of our claims of damage. Additional demands served upon us will include request for authorizations permitting defendant attorneys to obtain your medical records, employment records, tax records, etc. We will also be asked to advise the nature and substance of the opinions of our experts as well as to disclose names and addresses of witness. Other demands could also be made. If we believe their demand, we will make a motion to the Court asking that a Judge determine the validity of such a demand and ruling as to whether we must reply.
Additionally, our paralegals will serve upon the defendants formal demands requesting information regarding their expert information, witnesses, party statements, etc. If the defendant attorneys do not comply with our demands, once again we can petition the Court for an order compelling them to do so within a prescribed period of time. This exchange of information is known as the discovery phase of a lawsuit. This phase can often last several months until each side obtains the necessary records and documents they feel required to prove their claims.
At the time that we serve our Bill of Particulars, our paralegals will also file a document requesting Judicial Intervention and the scheduling of a Preliminary Conference. At this Preliminary Conference, all the attorneys appear and a discovery schedule is set forth with time deadlines ordered by the Judge. The Order that is derived from this Conference will also include dates for examinations before trial and physical examinations. An examination before trial is a deposition of a party. Unlike criminal cases where defendants can never be compelled to provide testimony, in a civil case, the testimony of all litigants, both plaintiff and defendant, is required. Prior to the actual examination before trial, you will meet with your lawyer who will go over your case and prepare with you for the deposition. Our lawyers can anticipate nearly all of the questions that you will be asked at this deposition. During the deposition, your attorney will be sitting right next to you providing counsel. You will feel confident testifying at your deposition since you will have been fully prepared by your lawyer in advance. A court reporter will be present at the deposition which generally takes place in our office. The court reporter will transcribe all of the testimony and eventually a transcript of the proceedings will be generated. You will have the opportunity to review that transcript with your lawyer to make sure that there are not any errors. Similarly, we will conduct depositions of all of the named defendants.
Following the depositions, the defense attorneys have the legal right to designate a physician to conduct a physical examination of you by a physician of their choice to confirm our claims of injury/ damage. If the defense exercises their right to conduct a physical examination, our office will make the arrangements for a paralegal or law student from our office to accompany you to fully protect your rights.
At the conclusion of the entire discovery process, our attorneys will direct a paralegal to prepare and file with the Court a Note of Issue stating that all preliminary proceedings have been completed and that the case is ready to proceed to trial. Your case will then be placed on the trial calendar and we will await a notification from the Court to appear for a pre trial conference. Depending on the county, this can take anywhere from one to six months.
At the pre-trial conference, your lawyer will meet with the judge and the defense attorneys to see if an amicable resolution to the lawsuit can be reached. At this stage, negations between both sides generally commence with the hope of reaching a satisfactory settlement. There are occasions where there are not negotiations such as if a defendant physician refuses to consent to a settlement or the insurance company believes that our claims cannot be proven at trial. There may be one or several pre-trial conferences. The parties may also elect to go to private mediation in an attempt to resolve the matter. If a reasonable settlement cannot be reached, the parties will be directed to select a jury.
You will spend as much time as necessary preparing with your lawyer for trial. The attorneys appear in Court without their clients during the jury selection process. Many potential jurors are interviewed, sometimes in excess of 100 jurors, until both sides concur that the jurors selected will be objective minded, fair and impartial.
A trial Judge will be assigned to your case and the Judge will have an initial conference with the attorneys. You will be asked to attend at least some portion of the trial and often be requested to be present throughout the entire trial. The Judge will provide initial instruction to the jury and then your lawyer will make an opening statement to the jurors. This is then followed by opening statements on behalf of the defendants by their lawyers.
Next, your lawyer will call all those witnesses including you and often your family members who we believe necessary to prove the case to the jury on your behalf. When we question you or any of our witnesses, that inquiry is known as a direct examination. After direct examination, the defense attorney will conduct a cross examination. After we have called all the witnesses we feel necessary to prove your case, we will rest . The defense attorneys can then call to the witness stand any witness that they feel are necessary to defeat our claim. Their witnesses also respond to the direct examination of their lawyers and the cross examination by your lawyer. After all of the witnesses testify, the defense attorney presents their closing remarks to the jury. Your lawyer then gives his summation of the trial to the jury in the most convincing and provocative manner so as to sway the jurors in our favor. The Judge provides the final instructions to the jury and then the jury deliberates, ultimately rendering a verdict.