Getting Your Day in Court: Tools for Moving Cases Quickly for Clients with Terminal Diagnoses

Unfortunately, in medical malpractice claims, clients often discover they have a terminal illness or disease as a result of the medical malpractice that is at the source of their lawsuit. When this occurs, medical malpractice lawyers face multiple urgent legal considerations, and timing becomes essential for both the client and their loved ones.

Below are two strategies that can be used when your client has a terminal illness in order to move the case quickly to allow them to participate in the litigation during their lifetime: the first being a motion for an expedited discovery schedule and the second being a motion for an expedited trial schedule.

Expedited Discovery for Terminally Ill Clients

After a case is filed, parties participate in the discovery process, which in medical malpractice cases can take years. However, when it is known that a client has a terminal illness, their attorney can request expedited discovery pursuant to NY Civil Practice Law and Rules CPLR 3407 to have all discovery completed within 90 days. Motions for expedited discovery can be made at any time during litigation once it is discovered that the party’s illness is terminal.

A central requirement to these motions is that they must be accompanied with a physician’s affidavit. This affidavit must affirm:

• That the client is terminally ill,
• The nature of their terminal illness,
• And their life expectancy if known.

If the motion is granted, the court will order a preliminary conference, which will establish a discovery schedule to be completed within 90 days. This is a substantially shorter schedule than most standard medical malpractice cases, as depositions and paper discovery can take years to complete. Therefore, moving for expedited discovery is an imperative step in moving the case forward when a client is terminally ill so that they are able to get on the trial calendar sooner and meaningfully participate in litigation.

Expedited Trial in Cases Involving Terminal Illness

Once discovery is completed, attorneys inform the Court that the case is ready for trial by filing a Note of Issue. When a client is terminally ill, attorneys may also file a Motion for Trial Preference which allows the Court in their discretion to “fast-track” the case on a trial calendar.

Specifically, NY Civil Practice Law and Rules CPLR §3403(a)(6) allows for trial preference where the plaintiff is terminally ill and the allegation is that the terminal illness is a “result of the conduct, culpability, or negligence of the defendant”. Similar to the motion for expedited discovery, this motion should be supported by a physician’s affidavit supporting the fact that the Plaintiff is not only ill, but terminal. When possible, it is best practice to obtain this affidavit from the client’s treating physician as they would not only understand the medicine behind the terminal illness but can be much more specific rather than speculative about the terminal nature of the disease the client is suffering from. The goal in a motion for trial preference is to try to ensure that a dying plaintiff is still able to be heard by the Court and a jury of their peers.

Importance of Videotaped Depositions for Terminally Ill Plaintiffs

Unfortunately, regardless of how fast an individual attorney works, the process itself can still lead to inevitable delays, and a terminal client may pass away before they have the chance to have their day in Court. That is why it is extremely important in cases with terminal clients is to videotape their depositions so even in the worst-case scenario where the client passes away prior to trial, they can still be heard by their peers by way of a videotaped deposition that will be presented to the jury.

Even this preservation attempt is not without a fight. While at times parties will consent to videotaped depositions, there are many times where a Defendant will refuse to consent, and Plaintiff’s attorney must fight for this right.

Attorneys at Jacob Fuchsberg Law Firm consistently have fought to ensure that their clients' words were preserved by videotaping their depositions so they would still be presented to a jury in the event that a client unfortunately passes away prior to trial. Without this video, there would be no way to preserve the witness’ testimony for a trial.

Therefore, when a client presents with a terminal illness, to protect their legal rights – it is imperative to conduct a video tape deposition and make timely motions for expedited discovery and trial preference.