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How to Pursue a Malpractice Claim

Filing a Negligence Claim & Prosecuting an Elder Neglect Case – the Process

Retaining an Attorney to Investigate the Case

The first step in pursuing a claim is to retain an attorney to assist with the case investigation and prosecution. Do your due diligence in retaining a well qualified attorney who has trial experience in this area. Most attorneys work on a contingency basis, so you will pay no attorney’s fees unless there is a recovery. However, before committing time to a case an attorney will evaluate the case to see if it one that can be prosecuted successfully.

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Preserving Evidence and Gathering the Relevant Records to Investigate a Case

If you have a potential negligence claim you should take steps to preserve important evidence like photos, emails and other communications that may be relevant. In the process of investigating a claim against a health care provider, it is important to gather all records that will assist in pursuing the matter. Your attorney can assist you with this process.

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Opting Out of Mandatory Arbitration Provisions

In an attempt to limit the rights of patients, many large nursing home chains use mandatory arbitration provisions in which the resident agrees not to file a lawsuit in Court. Most residents do not even realize they have signed such paperwork, given the large amount of paperwork completed upon admission. Often these agreements are signed by patients who are ill or demented.

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Pursuing Pre-suit Settlement Negotiations

The vast majority of nursing home cases that are pursued are settled out of Court. Such settlements can occur before a lawsuit is filed or after the complaint is filed. To resolve a case prior to filing a lawsuit, your attorney will present a claim to the insurance carrier. Some nursing facilities will agree to mediate a case before a lawsuit is officially filed.

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Filing Suit, Expert Reviews

In most states to file a lawsuit an attorney must certify that the case was reviewed by an expert who found merit in the case. This process is generally referred to as an expert certification requirement. These provisions were originally enacted to prevent frivolous lawsuits.

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Litigation, Discovery and Trial

If early attempts to resolve the case fail, the next step is filing a lawsuit in Court and seeking a jury trial. Before the trial, the parties will engage in discovery where they will first exchange documents and then undertake depositions or questioning of witnesses under oath. Experienced attorneys will often file Motions to Compel the defense to produce important documents, like prior complaints, staffing records, personnel and training protocols.

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Time Limits for Bringing lawsuits, Virginia, Maryland & Washington DC

All lawsuits have time periods or statute of limitations, which is a time period for bringing a lawsuit. Lawsuits filed after the limitation period are barred. In Virginia any claim for personal injury or malpractice must be brought within 2 years of the injury or date of death. Va Code section 8.01-243.

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