Going To Trial
The following are the steps necessary to bring the case to trial.
Pleadings are the documents parties file in court that form the basis of a lawsuit. This is intended to be general information only. Each case is unique.
Complaint or Petition – A lawsuit is filed against an opposing party by filing a document in court known as a complaint or petition. The person who brings the action is the plaintiff – you. The person against whom the action is brought is the defendant. The petition is a statement of facts alleging the names of the parties and alleging why the conduct of the defendant entitles the plaintiff to recover damages.
Summons – Once the plaintiff’s petition is filed, a “summons” is issued to be served on the defendant by an officer of the Court, usually, a Deputy Sheriff or process server, informing the defendant that suit has been filed and that a response must be made within a given period of time or a judgment will be taken against him.
Answer or Motion – The response filed by the defendant is called an Answer, which is prepared by the attorney for the defendant. Alternatively, if a defense attorney feels there is a fatal flaw with the lawsuit a motion to dismiss the complaint or to strike portions of the complaint may be filed.
Once an action is filed, both sides have a right to “discover” facts concerning the opposing party’s case. Normal discovery proceedings include written interrogatories, depositions, production of records, and sometimes medical examinations.
Interrogatories – Each side may serve written questions on the opposing party, called “interrogatories”. You are required to answer these questions within a prescribed period of time, in writing and under oath. We will serve interrogatories on the defendant on your behalf, and the defendant will serve interrogatories on you, which you must answer. Our Law Firm will assist you in preparing your answers.
Depositions – Used to learn as much as possible about the other side’s claim or defenses, a deposition collects information, under oath, that is transcribed in a statement which may be used by either side in a lawsuit. It has the same effect as testifying under oath. Those present are the parties concerned, their lawyers, sometimes an additional witness or two, and a court reporter who records the questions and answers. The lawyers normally agree in advance where the deposition will be held. It is usually in the office of one of the lawyers. You are required by law to give a deposition. This is not something in which we have a choice. Because of this, we will need your full cooperation. Prior to the deposition, our Law Firm will go over the facts of the case with you and answer any questions you might have.
YOUR DEPOSITION IS OFTEN THE MOST IMPORTANT PART OF YOUR CASE.
It is important that you be prepared well in advance of the deposition date.
In giving a deposition, there are a few rules to follow:
a. Always tell the truth, even if it hurts your case.
b. Answer only the questions. Do not make any voluntary statements or speeches.
c. Think before you make any answer to any questions. If it concerns a matter about which you do not know or a detail you do not remember, you may so state. However, once you have stated that you do not know or remember, it’s hard to change your testimony at trial.
d. Always be polite. Frequently the other attorney will ask you many questions which will seem to you to have no bearing upon the case. Nevertheless, it is your duty to answer these questions, notwithstanding the fact that they may irritate you.
e. Never conceal prior injuries or prior illnesses. Remember, the other side has the means of obtaining such information.
There are occasions when the parties submit the dispute to “mediation”. The parties meet with an independent third person, usually, an experienced lawyer or retired judge, who assists the parties in arriving at a settlement. The results are not binding. It is informal and less expensive than a trial. If that is an option for your case, your lawyer will discuss it with you.
If you have been seriously injured or lost a loved one as the result of a car accident, you need the advice of an experienced personal injury lawyer. Call our Law Firm today for your free consultation.
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Medical malpractice is the failure of a health care professional or institution such as a hospital to follow the standard of care in treating a patient with the result that the patient is injured as a result of that failure to follow the standard of care.
As a practical matter, it is very hard for a lawyer to bring a successful medical malpractice lawsuit. As a result, I have been forced to become very, very selective in what medical malpractice cases I will consider.
In a nutshell, a good medical malpractice case should be based on an error that is simple enough to explain to a bright young child and involves death or very serious permanent damage. (In contrast, I’m happy to take an auto collision with small damages.)
The reason that medical malpractice cases in Texas have become so difficult recently are these:
1) There is a two-year statute of limitations to bring medical malpractice actions. Although there are some exceptions, in most cases, the case has to be filed within two years of the injury. So, starting from the day on which you suffer some type of injury or harm because of medical malpractice, you have two years to go to court and get your lawsuit filed. Or, if the harm occurred as part of an ongoing course of health care treatment, the two-year “clock” doesn’t start running until that course of treatment is concluded. Texas also has a rule in place that says once more than 10 years have passed since the alleged medical error occurred, you will have lost your right to file a medical malpractice lawsuit in Texas. This is known as a “statute of repose,” and it acts as something of a larger catch-all filing deadline. And finally, a note on medical malpractice lawsuits that are filed on behalf of young children: In Texas, when a child under the age of 12 is the plaintiff, a medical malpractice lawsuit must be filed by that child’s 14th birthday.
2) The Texas Supreme Court has made it absolutely clear that when the complaint is filed the attorney must include an expert affidavit (in most cases) explaining how the defendant breached the standard of care and that this breach in the standard of care caused the injury complained of. This is much different than the situation with almost all other lawsuits. In almost all other lawsuits, the plaintiff can make allegations when the complaint if filed and will have time after the filing of the complaint to back them up. The material to back up the lawsuit sometimes comes from the defendant because the Plaintiff, after filing suit, is allowed to ask the defendant questions under oath. But with a medical malpractice lawsuit, the Plaintiff in most cases essentially has to put his or her case together before filing within one year of the injury. You can see that if someone goes into a hospital for a simple operation and dies, it might or might not be so easy to understand why the person died, what each doctor or other health professional did wrong, and how this wrongful act caused the death, especially if all of the health care professionals stick together and keep their mouths shut.
3) The combination of both of the above factors means that an attorney does not want to look at a possible medical practice case within a few to several months of the one-year statute running. If an attorney were to spend three months looking into a case 8 months after the malpractice occurred and then decide not to take the case, the client would only have one more month before the statute ran and no other attorney would want to be working under that kind of deadline to put the case together.
4) It is very expensive to hire other doctors to give affidavits and testimony in a medical malpractice case. This is much different than an auto accident case in which there is an almost free police report.
5) The law limits the amount of compensation a medical malpractice victim can receive. There is a per-claimant $250,000 cap on non-economic damages in medical malpractice cases against a physician or health care provider. For medical malpractice cases against a single health care institution, there is a per-claimant $250,000 cap on non-economic damages.
6) Often, doctors, like the police at a coroner’s inquest, enjoy a favorable initial impression.
7) Typically doctors can tell their malpractice insurance company not to settle even if the insurance company would like to settle. Doctors may prefer not to settle because all of the malpractice settlements become available to the public.
Now that we have discussed some of the difficulties of all medical malpractice cases, let’s look at some specific types of cases:
Sometimes the breach of the standard of care is easy to demonstrate. The wrong leg is amputated. A radiologist injecting gas into the intestine to get better image misconnects the machine and blows up the gut. Large foreign bodies are unintentionally left in the abdomen. Unfortunately, things you might think are obvious breaches of the standard of care are not. For example, the colon is perforated during a colonoscopy. Sorry, the mere fact of that this happened doesn’t prove anything. Colon perforation is known, and fortunately uncommon risk of a colonoscopy.