What is the next step after an attorney files an affidavit with expert witness review for med mal?
My attorney filed an affidavit for a med mal case about 3 months ago and said that he would call us back when he has an update. I was just trying to do some research to determine what the next step would be so I can understand the process better, but I am having trouble finding any information.
The physician affidavit filed in Illinois is a requirement to continue forward with the lawsuit. I cannot make specific comment on your case, so you really should discuss the case progress with your lawyer.
However, generally what happens after the lawsuit is filed and the physician affidavit is filed is called discovery. The usual course is that written questions are filed by each party called Interrogatories, that are required to responded to under oath. Also there will be Requests for Production of Documents, which request medical records and other documents.
Depositions are generally taken from all parties, witnesses and others connected with the events. In a medical malpractice case this can include the plaintiffs, the defendants, and other health care providers involved in the patient care, the expert witnesses, and oftentimes other medical providers involved before or after the care surrounding the case.
Discovery can be a lengthy, expensive and involved process, depending on the particular case.
After all discovery is completed the case is ready for trial, or possibly settlement discussions (which can include mediation). Only the most clear-cut cases have much chance of settling before discovery is complete, so you should not get your hopes up for early resolution.
Every case is different, and this is merely a general outline for what happens in litigation.
I agree with my colleague Mr. Girrards on all but one aspect of his answer. In the Circuit Court of Cook County, IL, the entire process for a medical malpractice lawsuit rarely if ever takes but 2 to 4 years. Instead, if the case does not settle before a trial, the matter may well take over 5 years to get to a trial date.
Confer with your lawyer for the specifics. He will advise you about your particular matter.
Typically the defendant is served with the complaint (lawsuit) along with the affadavit and the reviewing experts report documenting why and how the malpractice occurred. Thereafter the defendant contacts his insurance company and they in turn appoint counsel for the defendant. The defense attorney either answers the complaint or files a motion to dismiss based upon a variety of issues.
I would suggest that you contact your attorney for periodic status checks as well as an explanation of how lawsuits proceed.
I am not licensed in IL and cannot tell you exactly what is required under IL law. But, as I have been practicing medical malpractice cases for 21 years I can tell you the basics so you will know how these matters generally proceed. As you may already know, the first thing your attorney will do is gather the medical records and other materials needed to do a thorough case investigation. Many states have certificate of merit requirements or affidavits or other expert report requirements that the attorney will gather. Sometimes these will need to be filed with the Court - sometimes they are simply exchanged with the other side. Frequently, the case cannot proceed procedurally until this is accomplished. Usually, following this, the case will proceed into the discovery process in which each side exchanges information and documents and then takes sworn statement ["depositions"} of the witnesses. Then, expert witnesses are designated and deposed. Then there is a mediation. Finally, a trial takes place if no settlement agreement can be reached. Typically, this whole process takes 2 to 4 years from start to finish. I hope this information helps you orient yourself to the process. Good luck in your suit.