How to File a Medical Malpractice Lawsuit

A medical malpractice lawsuit can arise when a medical care provider, such as a doctor or nurse, harms or injures a patient by failing to provide the proper standard of care. If you believe you have been a victim of medical negligence and would like to file a medical malpractice lawsuit against a professional, here are some pointers on how to get started and what to consider.

Get Assistance from an Attorney

The process of litigating a medical malpractice case is long and difficult. It should be handled with the help of an attorney with a qualified legal background. They will be able to guide you through the complicated and rigorous process of filing a medical malpractice suit against your medical provider. So Get help from an attorney today! 

Making sure your case has merit

One of the first steps your attorney will take is finding out whether or not your medical malpractice claim has merit. This can be done by:

  1. Reading and evaluating your medical records; and

  2. Sending your medical records for review by an expert in the relevant medical field.

In some states, an Affidavit of Merit - a statement that the case has the merit that is sworn by a medical expert - is required to file a medical malpractice lawsuit. Although not all states require an Affidavit of Merit at the time the lawsuit is filed, it is still necessary for the litigation process to know that a claim against the medical provider has a legal and medical basis. 

How long do you have to file a medical malpractice lawsuit?

Every state has a different governing deadline for filing a medical malpractice lawsuit against a medical professional. These deadlines are referred to as statutes of limitations. It is very important to know the statute of limitation rules of your state so your lawsuit is not time barred. 

 

Every statute of limitation has a standard deadline. This gives you a certain length of time to file a medical malpractice lawsuit after the negligent act or omission has occurred. The number of years you have typically ranged from 2 to 5 based on state, but varies. If you are not able to file a lawsuit before the deadline, you lose the right to sue for medical malpractice.

 

One common exception to the medical malpractice statute of limitations is the discovery rule. This rule allows you to extend the statute of limitations because the negligence was not identifiable right away, or you did not start experiencing adverse symptoms immediately. The statute of limitations clock begins when the patient discovers or reasonably should have discovered, that the medical provider engaged in some negligent act or omission. However, if the harm has been obvious and you choose not to treat it, the discovery rule may not apply to you. The discovery rule does not exist in every state, and in many states, there are time restrictions to the discovery rule, so it is important to consult an attorney as soon as you become aware that you may be the victim of medical malpractice.

Cost of Filing a Medical Malpractice Lawsuit with an Attorney

When bringing a medical malpractice lawsuit, there is no payment to the attorney unless the case results in a financial award in the form of a financial settlement or judgment. Medical malpractice attorneys usually have contingency fees.  These fees are a percentage of the award or settlement amount received by the plaintiff. However, if the case results in a loss, there is no reward to the plaintiff. The percentage that is taken after a reward varies among different states based on their medical malpractice laws, and different attorneys base their contingency fees on different criteria. Attorney’s fees can be a fixed percentage of the award or settlement or can change depending on the award or settlement amount.

One benefit of bringing a medical malpractice lawsuit using a reputable attorney is that they may pay for the upfront costs associated with bringing the case so that you are not burdened so much that you cannot pursue justice. This money will eventually have to be paid back if you win the case, but will often be forgiven if the case loses. The most costly expense that the attorney will face will likely be hiring expert witnesses. Expert witnesses are individuals who are qualified to testify at a trial due to their expertise in a certain field, for example, doctors, surgeons, and nurses. They charge based on how much time and effort it takes to review documents, travel, and participation in court. Other costs may consist of court filing fees and medical record retrieval fees. All these litigation expenses are taken care of upfront by the attorney and the firm that they are part of, and will be deducted from any award or settlement you receive. 

Basic Requirements to File a Medical Malpractice Lawsuit

To begin a medical malpractice lawsuit, you must be aware of the basic requirements that come with it. The questions that you might want to ask yourself are:

Was there a doctor-patient relationship?

Doctor-patient relationships are initiated under specific conditions, but not every interaction with a doctor initiates this type of relationship. It is easy to prove that there is a relationship if the doctor has been treating you for some time. Every visit and consultation is recorded for medical and legal purposes. However,  casual conversations with a doctor outside the office or over the phone that includes general advice on how to treat something, like with a friend who is a doctor, does not always initiate a doctor-patient relationship. This specific topic rarely becomes an issue in litigation, because most of the time treatments administered by doctors occur in established doctor-patient relationships.

Was the medical care provider negligent?

Medical malpractice lawsuits are born out of a belief that the doctor deviated from the proper standard of care. In order to file a lawsuit, the attorney must allege that the medical care provider departed from standard medical practice and did something that most medical providers would not do, or failed to do something that most providers would have done.

Did the medical provider’s negligence lead to injury?

Sometimes doctors, nurses, and other medical providers engage in negligent acts or omissions, but they do not result in any harm. For example, perhaps you have prescribed an incorrect dosage of a prescription drug or the wrong prescription drug, but you notice before taking the medication and contact your doctor. In cases like that, usually, no injury occurs. Sometimes patients go into treatment or surgery already injured. For example, a patient can go into surgery with a deadly disease and the doctor makes a mistake during the surgery. The patient then dies. It could be hard to differentiate whether the mistake or the disease caused the death of the patient. This may warrant expert review in order to better understand what caused the death.  Whenever you’re in doubt, if you are not sure what the injury is, or you are not sure if the doctor’s act or omission caused the injury you are suffering from, you should consult an attorney to better understand the merits and basis of your claim.