What Is Discovery In A Lawsuit?
A lawsuit is crafted of several different stages. In the civil proceedings there are certain litigation paths that must be taken depending on the route of the case. Discovery is in the pre-trail phase of a lawsuit and acts as the parties’ opportunity to gather information.
Upon the commencement of a civil action by filing a civil summons, the defendant is allowed to file an answer to the complaint, either admitting or denying allegations.
In response to the answer, the plaintiff’s lawyers then put together written questions known as “interrogatories,” which usually mark the beginning of the discovery phase in litigation. These are a series of questions compiled by the plaintiff’s for the defendant to answer. However, the defendant may also serve a set of interrogatories on the plaintiff(s).
In addition to interrogatories, the parties may request depositions. A deposition is an examination of a party or witness in a lawsuit. A deposition allow for each side to gather further information and allows opposing counsel the opportunity to know what a witness or party to a case may say at trial by allowing them to question or depose them.
Another tool in the discovery process are the requests for admissions. These are used to determine which issues or facts in a case are really in contention. If a party is willing to admit to something then it is not something that needs to be argued during a potential trial. Requests for admissions are done in writing.
This is just a brief synopsis of the different parts of discovery in a lawsuit. The important thing to remember is discovery is meant to gather or discover information so there are fewer surprises if a case does find its way to court.
What are Requests for Admissions?
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Requests for admissions occur during the discovery process within a lawsuit. When you are sued you are given a “complaint” which tells the court what the person(s)/company did legally wrong. Example: Sunny Side Up Nursing Home did not provide proper care to John Doe as required by the NC state guidelines for standard care. The court requires a legal answer (No, we, Sunny Side Up Nursing Home, provided proper care to John Doe as required by the NC state guidelines for standard care). Answers are always legally binding, and must be filed with the court during the allotted timeframe.
The complaint starts the discovery process in which the court wants to find “facts” regarding the case. The plaintiff’s attorney, the plaintiff is the person(s)/company who files the lawsuit, will send out interrogatories (questions) in which the defendant is required to answer (responses on whether or not the allegations are true). Once you respond with your answers, you must file them with the court for them to be valid. .
Requests for admissions are statements of facts sent to one of the parties of the lawsuit. It is a part of the legal discovery process. The responding party must either admit or deny the alleged facts sent in the request for admissions. If the responding party does not deny the alleged facts, they are deemed to be admitted after a certain amount of time and are considered a legal fact in the court proceedings.
Request for admissions are often seen in a wide array of legal cases. Whether it is in bankruptcy litigation, workers’ compensation litigation or any other type of civil litigation, request for admissions are a tool used to obtain more information and determine what facts are truly in dispute in a case. If all of the parties to a case can agree certain facts and contentions are true – then it ensures more efficient litigation.
All law can be confusing at times, especially in lawsuits where you have two entities/person(s) involved in a lawsuit. It is imperative that you seek proper legal advice from your attorney.
How are Medicare and Medicaid Liens Treated in an Injury Case?
There are two types of financial medical payment assistance provided by the federal and state governments. One is Medicare, which was enacted in 1965. Medicare is a federal agency that pays medical care for elderly (usually over the age of 65), the disabled and other limited classes of medical recipients.
In contrast, Medicaid is usually a state run, but federally sponsored, program that provides financial medical assistance to low income families or individuals.
Medicare and Medicaid usually pays for medical care in the event the injured person is eligible for Medicare or Medicaid assistance and is unable to pay their medical expenses. Medicaid and Medicare are secondary payers and will pay only after private insurance has been exhausted.
In a medical malpractice case, both Medicare and Medicaid have a statutory lien on any recovery from a jury award or a settlement with the defendant in which Medicare or Medicaid has provided payment for the injured person’s medical care.
In other words, Medicare and Medicaid will be paid back any money they have spent to provide medical care to the injured person from the injured person. They will demand under federal and state law this money to be paid back from the settlement or jury award in the medical malpractice case.
Usually the attorney representing the injured person has the legal obligation to reimburse Medicare and Medicaid for any monies they have paid for the care of the injured person. If the attorney does not pay this amount from the settlement or jury award, the attorney is personally liable for the lien.
In conclusion, the law states Medicare and Medicaid must be reimbursed for any money they have provided for the care of an injured person in a medical malpractice case.
How Do I Request Medical Records?
To review a possible medical malpractice case or nursing home injury or neglect case at Duncan Law we must have the injured person’s medical records reviewed by an expert witness. These are usually an expert nurse and/or a physician. For a medical expert to give a thorough review of your case it is important they have the opportunity to review the medical records.
To obtain a copy of the medical records you must request the records from the medical care provider. To provide these medical records to you, your health care provider must follow government privacy laws called HIPAA. HIPAA is the Health Insurance Portability and Accountability Act of 1996.
First, you must qualify to receive the medical records. If you are the patient requesting your medical records, you can sign a HIPAA release and receive your medical records. If you are not the patient, you must have a formal release signed by the patient or have the legal authority to obtain these records. The legal authority is usually granted by a power of attorney document properly executed by the patient (not just a hand written note signed by the patient). If the patient is incapacitated, you may have to obtain a legal guardianship or a court order to acquire the records. If the patient has died you must be the executor of their will or be appointed administrator of their estate by the clerk of the court or a judge.
Second, after qualifying to receive the medical records you should make a written request to the medical care provider to provide the medical records. The medical provider may have these records stored electronically offsite away from their physical location, so it may take several days to obtain these records. If the records are stored offsite, the medical care provider should provide the records to you within 10 calendar days.
If the records are available at the facility, they should be able to have a copy made for you within 24 hours of your request. Do not expect to walk into the medical facility and they make you copies while you wait.
When you request the records, the staff may ask you why do you want a copy of your medical records? First, you are not required to answer that question. It is your medical records and you do not have to answer that question. However, any time you ask for medical records, especially from a doctor’s office, it raises flags and alerts the doctor to a possible problem. The staff will usually inform the doctor or nursing home administrator of the request and they go into “defensive mode”. In the past, some medical providers have been known to illegally change the medical records to “cover up” a mistake they have made. Be aware this could happen. If the medical records are on site, you may ask the person in charge of medical records to pull the records so that you may look at the records on site before they are copied. Once you have reviewed the records, you may then ask for copies. After receiving the records, review the records and determine if any changes were made. If changes were made, notify your attorney immediately and dispute this with the medical facility.
Many medical providers will “discourage” you from obtaining the medicals by charging you an outrageous price per page to “copy” these medical records. Some providers will attempt to charge you a $1.00 per page. If you have 600 pages due to an extended hospital or nursing home stay that could become very expensive. Fortunately, in North Carolina, there is a state law that prohibits excessive copy fees. It is North Carolina General Statute 90?411, which states:
“A health care provider may charge a reasonable fee to cover the costs incurred in searching, handling, copying, and mailing medical records to the patient or the patient’s designated representative. The maximum fee for each request shall be seventy?five cents (75 cents) per page for the first 25 pages, fifty cents (50 cents) per page for pages 26 through 100, and twenty?five cents (25 cents) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs.”
Once you’ve received your medical records contact your medical malpractice attorney or nursing home injury lawyer and provide them with the records so they can be appropriately reviewed.
Common Types of Birth Injuries | North Carolina Medical Malpractice
When a baby is injured at birth those injuries can often times lead to a life long injuries. A birth injury occurs when a newborn is injured during the labor process. There are several types of birth injuries, some minor and easily remedied and some more serious. Many birth injuries can be prevented by proper medical care and adhering to the appropriate medical standards. There are many birth injuries, most of them minor, which can occur without any malpractice from the attending doctor. Others are more serious and are caused by negligence or fault of the doctor, for these reasons it is important to consult an attorney on the specific facts of your case.
Many birth injuries affect the head and shoulders of the baby, since these are the parts of the baby’s body most affected during labor and the actual birth. One minor birth injury is bruising on the baby’s head that can occur naturally from either the birth canal or the mother’s pelvic bones. It is also common for a baby to have bruising if forceps or a vacuum are used to extract the baby during delivery. These are tools commonly used during a delivery and rarely cause serious injury. In rare situations, the forceps may actually fracture the skull of the infant and surgery may be needed to correct the injury. Another common birth injury caused by a vacuum extraction is caput succedaneum, or a severe swelling of the child’s scalp; this usually disappears in a few days. Another typical head injury is cephalohematoma, or a bleeding between the bone and it’s fibrous covering. This will typically heal within a few weeks to a couple of months.
Sometimes during childbirth, the baby’s shoulder can become impaired and cause nerve damage in the area that controls the movement of the arms and hands. This is known as Erb’s Palsy, an injury to the brachial plexus nerves in the neck and shoulder. Normally, the injury will heal within a few months but occasionally there will be permanent damage and surgery will be needed. The severe cases of brachial plexus nerve injury are most often reviewed as possible medical malpractice by the obstetrician or midwife, since the potential for injury should often be identified during the labor process.
Some more serious birth injuries include brain damage from a lack of oxygen that can be caused by an umbilical cord or blood loss. This type of injury can cause cerebral palsy, seizure disorders or mental impairment. These injuries can often be avoided with proper monitoring during the labor process.
Birth injuries are more common in larger babies (over 9 pounds) and in premature babies. A long or difficult childbirth also correlates with more birth injuries. If a woman has had a difficult birth in the past, it is important to alert the doctor of this history as soon as the mother becomes pregnant. In these cases, the mother and child should be closely monitored throughout the pregnancy. Often the doctor may recommend a Cesarean section rather than a vaginal birth to avoid possible injury in difficult pregnancies. A doctor not taking appropriate action either in anticipation of the likelihood of a difficult birth or after birth injuries have been detected is when medical malpractice becomes an issue.
What is Cerebral Palsy and What Causes Cerebral Palsy?
Cerebral palsy is an injury to the brain either by natural causes or by the mistake of a physician.
Cerebral palsy usually develops during the fetal development of a child, during the birth of a child, or shortly after the birth of a child. The injury is usually caused by lack of oxygen to the brain, or some type of trauma to the brain of the child. Cerebral palsy is a permanent condition that does not improve; however, with advanced treatment and therapy, many children may live productive lives.
Sadly, some children that develop cerebral palsy must receive 24-hour care for the rest of their lives and may not live to a “normal age” due to other medical problems as a result of the cerebral palsy.
Many times the brain injury of the child is caused by the medical negligence of a physician before, during, or immediately after the birthing process of the child. If you believe your child’s physician committed medical malpractice in the care and birth of your child, and this caused the cerebral palsy birth injury, you should contact an attorney who deals with medical malpractice and birth injuries to further explore your options.
What is the Statute of Limitations If a Doctor Caused an Injury?
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Unfortunately, there are times when a trusted doctor makes a mistake that causes serious or irreversible harm to a patient. If you or a loved one have been injured by a doctor or medical facility, you may be considering hiring a lawyer to file a lawsuit against your doctor so that others will not suffer similar injuries and so that you can be compensated for your injury. However, it is important to keep in mind the legal deadlines that limit when you are able to file a lawsuit against a doctor.
The legal deadlines are called the “Statute of Limitations,” which are generally certain time frames within which a lawsuit can be filed against a doctor after an injury has occurred. The Statute of Limitations for injuries caused by doctors varies from state to state. In North Carolina, the Statute of Limitations for a medical malpractice lawsuit is three years from either: 1) the date the injury or wrongdoing occurred, or 2) the date the injury was or should have been discovered, but not more than four years from the date the injury or wrongdoing occurred.
If you have been injured by what you consider to be a doctor’s mistake or negligence, you do not want to wait until the last minute to contact an attorney. A medical malpractice attorney in North Carolina usually needs at least 6 to 8 weeks to review your medical records to determine whether or not you have a potential claim against your doctor. Using a hypothetical situation, pretend you suffered an injury due to a doctor’s negligence from a surgery that occurred on January 1, 2005, and that you discovered the injury on the same day as the surgery. Now pretend that you do not contact a lawyer until December 31, 2007.
You are only one day away from the end of the three-year Statute of Limitations. It is highly likely that you are going to have a difficult time finding a lawyer to represent you because the lawyer will have only one day to decide whether or not you have a good case and to actually file the lawsuit.
Now let’s pretend that instead of contacting a lawyer on December 31, 2007, you contact a lawyer on January 2, 2008. This would be one day after the three year Statute of Limitations, and even if you had a multi-million dollar lawsuit, you would have no opportunity to pursue the lawsuit because the legal timeframe has passed.
The bottom line is that it is vital to your case to remember exact dates regarding the injury you suffered, and to contact a lawyer as soon as you realize you have been injured, so that you are not barred from filing a lawsuit simply because you let too much time lapse.
Timeline For a Nursing Home Abuse Case
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A nursing home abuse and neglect case is a type of medical malpractice case. These types of cases are known as a complex litigation case. The usual timeline from the date of filing a lawsuit, also known as the complaint, to settlement or trial is usually anywhere from one to three years.
You are probably asking why so long? On television programs the case goes to court within one hour. Of course, this is television, not real life.
In a real case, the attorney must first meet with the family and investigate the nursing home case. A nursing home will not allow an attorney to question their staff, before filing a lawsuit, to determine if there is a legitimate case. Therefore, the attorney must first examine the medical records. It may take several weeks to obtain these medical records. The attorney then begins to piece together what happened at the nursing home.
Next, if the attorney believes there are grounds for a medical malpractice case, under North Carolina law, they must have these records reviewed by an expert doctor and/or nurse. This will usually take at least 30 days for the expert to review the records. As you can see, we are already at about two months of time elapsed and the lawsuit has not even been filed.
If the expert doctor and/or nurse believe the nursing home staff has violated the “standard of care”, the expert will render an opinion to the attorney. At this time the attorney begins the legal process of developing a complaint or lawsuit. Depending on the complexity of the case, the Complaint that has to be drafted for the lawsuit to be filed may take several weeks.
Eventually the attorney files the lawsuit at the courthouse. The deputy sheriff must then serve the lawsuit on the nursing home. Large corporate chains own most nursing homes making it difficult, at times, to determine the appropriate party to be served. After being served, the nursing home retains defense counsel. The defense counsel usually files an extension to “answer” the lawsuit. This usually takes about another 60 days.
At this time the discovery process begins. This is when expert witnesses, such as doctors and nurses, and the staff of the nursing home are questioned under oath at what is known as a deposition. Again, depending upon the complexity of the case this could take a year to complete. By now we are up to least 18 months since the family first met with the attorney.
Eventually the court will schedule mediation. Mediation is an attempt to settle the case before trial. This will usually take place several months after the discovery process ends. At mediation, both the plaintiff and the defendant meet with a mediator to try to resolve the case without the time and expense of a trial. Many times mediation is successful and the case is settled. Sometimes mediation is unsuccessful and the case would then proceed to trial several months later. A typical trial may last anywhere from one to four weeks.
As you can see, the wheels of justice roll slowly. We have an imperfect and often times slow justice system but there is no doubt it is the best in the world. Knowing the timeline of a typical nursing home abuse case is important when determining how you want to move forward to obtain the justice your loved one deserves.
