Like other medical malpractice lawsuits, cerebral palsy cases require careful investigation. It’s preferable, when possible, to do that investigation before filing a lawsuit. By doing the advance work during the pre-suit period, you can stay in control and develop your case in a way that puts you ahead of the defendants from the start.
It’s best for an experienced medical malpractice attorney to have at least six months before the statute of limitations to investigate the case. During this time, medical records are ordered, analyzed, and studied with a medical expert to get an opinion on the merit of the case.
Once there’s a green light there, it’s safe to serve the 60-day mandatory notice of the impending lawsuit and get to work on the preliminary medical expert reports required by Texas law.
Once the lawsuit is filed in a Texas district court, the court usually schedules the trial for about a year down the road. You might be wondering what happens during that time.
After any defense wrangling over the adequacy of the preliminary reports is resolved, the parties start with written discovery. That’s the process of exchanging questions and requests for production of documents. Next comes the depositions of all parties—that’s where a court reporter transcribes attorney questions and sworn answers of witnesses under oath. After that, the parties designate medical, nursing , and other expert witnesses, and there are additional depositions.
When all of this work is done, most Texas medical malpractice cases proceed to mediation. This is usually the first opportunity for the case to settle out of court, and is facilitated by a trained neutral mediator. While most cases that are mediated settle, there’s no guarantee or requirement for that to happen. If it doesn’t, then the case goes to trial.
Many people are surprised that just because the court scheduled a case for trial, it doesn’t necessarily mean it will be reached. This is because courts typically schedule several matters for trial at once. If a case isn’t reached, it will get reset for another date.
So, all of that was a pretty long answer to the question. My short answer is that, in my experience, it takes about a year from the date the case is filed to get to mediation. While many cases are resolved at that stage, it’s important to be fully ready to take the case to trial if the defendants get stuck with a low-ball settlement offer. Most cases actually go to trial in front of the judge and jury within six months of the first setting scheduled by the court.
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Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas.