How to Appeal a Medical Malpractice Verdict
Written by AskTheLawyers.com™ on behalf of Michael E. Perez with Warshauer Law Group, P.C..
If your medical malpractice lawsuit didn’t end in your favor, keep in mind that it’s not the end of the road. You can appeal the decision to the court of appeals in your state. Depending on how the verdict came about will determine when and how your appeal will be filed, so consult your attorney about the best way to proceed.
One thing to note here: you do not have to use the same attorney as the initial lawsuit. If you want a different legal team to handle your appeal, you are free to do so!
Your case might have been dismissed. Perhaps you lost at the trial level, or you received a directed verdict. Whatever the case, the good news is the amount of damages you can win in an appeal can fluctuate depending on how the case proceeded. In a way, it compensates for the trouble of going through the appellate process.
Appeal the Verdict, or Seek a New Trial?
One option after losing a medical malpractice case: getting a new trial. This is rare, since you need to prove that there were evidentiary or procedural errors in the previous trial. Being unhappy with the results is not enough grounds for a new trial.
To file an appeal, you must demonstrate a “reversible error” in the first trial. This could include leaving out evidence and testimony, or errors made in the jury instruction process. You can argue that the law was improperly applied, or that some parties misunderstood the facts of the case.
One important aspect of a medical malpractice appeal is that your attorney cannot introduce any new arguments. He or she can only bring up the same arguments used in the first trial. This is why there is so much pressure to get things right the first time. From there, the appeals court can uphold or overturn the previous court’s decision.
What if the Appeal Fails?
If by chance the court of appeals doesn’t even agree with you, it’s not over yet. There’s still hope. You can file what is known as a writ of certiorari to your state’s supreme court. The justices there then look at the decision the court of appeals made and either agree with it or overturn it. Bear in mind that the supreme court may or may not decide to hear your case, however.
It can take a while to resolve an appeal. It can take a year, and perhaps even two years to move forward successfully. An attorney appropriately filing the right documents and meeting all the deadlines can certainly speed up the process. One thing’s for sure: don’t ask for extensions (especially if you don’t want to prolong the situation in the first place). Make it a point to keep up on the deadlines, and if your lawyer is missing the mark in that case, you may want to shop for new counsel that can better serve you.
Of course, every medical malpractice case is different. There are different levels of complexity, and your attorney may need time to perform more investigations. Remember that it’s a process, and it may take a while.
Finding Support for a Medical Malpractice Appeal
Your first step is to work with your attorney earnestly and come up with an action plan that will best communicate to the justices—either at the state court of appeals level, or the supreme court level—that will sway them in favor of you.
If you believe that the attorney who handled the initial lawsuit didn’t give the case 100 percent, then consider choosing a different lawyer to handle an appeal. Attorneys offer free consultations, so you have the opportunity to shop around. Find a team with successful trial experience that knows your state’s appeal process forward and backward. There is hope for a more successful trial.
Written on behalf of Michael E. Perez by AskTheLawyers.com™