All medical malpractice claims against the United States must be filed under a statute called the Federal Tort Claims Act (FTCA). That law sets forth specific requirements that must be followed. It is therefore critical that the claim be carefully prepared by an experienced attorney because once filed it has significant legal consequences and can be changed only under very limited circumstances.
Six Month Waiting Period
Once the claim is filed, the United States has six months to investigate the claim. If at the end of six months the government agency has not made an acceptable settlement offer, the claimant is then allowed to file a complaint in federal court. Because suit is filed in federal court, not state court, it is essential that attorneys experienced in federal court be retained.
Proving the Case in Court
In order to successfully prosecute a medical malpractice claim, the party bringing the action (the plaintiff) must prove by a preponderance of evidence that the negligent act of a healthcare provider caused injury to the plaintiff. The entire burden of proof resides on the plaintiff; the government need not even present a witness. In order to prove its case, the plaintiff must present the testimony of qualified experts who support his position. Identifying experts and working with them is a major part of preparing your case for trial. Our firm retains only experts of impeccable character and the highest professional credentials. We do this to insure that when we get to trial, the United States will be unable to attack our case by attacking our experts.
The Discovery Process
Once suit is filed, the parties will then enter into an important period called “discovery.”
During discovery both sides have an opportunity to force the other side to produce documents and other relevant materials such as medical records, tax returns, social security records, etc. They also have the opportunity to interview relevant witnesses under oath in a process known as a deposition. Prior to your deposition, we will work closely with you to insure that you make the most effective presentation possible.
Finally, as part of the discovery process, an injured plaintiff may be required to undergo an independent medical examination to confirm the physical injuries alleged. The law allows the United States to identify a qualified medical expert and force the injured party to undergo a noninvasive examination. Should this occur, we will again prepare you for the examination.
Once discovery ends, there will be a several month delay before the actual trial. It is during this period that settlement negotiations are most likely to get underway. If settlement negotiations are unsuccessful, we will go to trial.
The Trial Process
Under the Federal Tort Claims Act, your case will be tried before a judge, not a jury. This is important since judges are less inclined to be swayed by emotion than are juries. To succeed before a judge, we must have the facts on our side and be able to prove those facts by a preponderance of the evidence. Remember, the burden of proof is on the plaintiff.
In a trial there is only one winner. That is why it is critical to have a rock solid case prior to going to court and the very best trial lawyers to present your case.