Can I Sue My Doctor?
By Steven J. Ellison, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last updated November 15, 2021
Yes, there are circumstances in which you may have a legal claim against your health care provider, including your doctor, for medical malpractice.
However, medical malpractice suits are expensive, hard to win, and present many challenges. So if you believe you have a malpractice claim, you should speak with an experienced medical malpractice lawyer in your area.
Medical Errors Account For Many Lawsuits
Unfortunately, medical errors happen, and the consequences can be devastating. Johns Hopkins University has reported that as of 2016, medical errors were the third leading cause of death in the United States (after cancer and heart disease).
Medical malpractice cases account for between 15,000 and 19,000 lawsuits filed each year. As many as one in every three clinicians is sued at least once in their lifetime, with some surgical specialties having an even greater chance of being sued.
Between 1986 and 2010, health care providers and their insurance companies paid out more than $38 billion for personal injury and wrongful death medical malpractice claims.
Elements of a Medical Malpractice Claim
Medical malpractice claims are governed by state law. Malpractice is essentially the failure of a health care provider to exercise due care in connection with the care and treatment of a patient.
To establish malpractice, a person must show:
- Duty of care (which exists in a doctor-patient relationship)
- Breach of that duty
- Causation (the breach of duty directly caused a foreseeable injury)
A doctor or other medical professional must provide the same level of medical care as a reasonable medical professional in the community with the same or similar training and experience would. This may sound like a medical standard, but it is more a legal one.
Most Common Reasons for Medical Negligence Claims
Medical negligence can occur in many different contexts, such as the doctor's office or a hospital emergency room.
Medical malpractice typically involves:
- Surgical errors or mistakes in other medical procedures
- Failure to treat (or improper treatment)
- Failure to warn of known risks (lack of informed consent)
- Birth injuries
- Medication errors
- Breach of patient confidentiality
Challenges in Medical Malpractice Litigation
There are many challenges in medical malpractice litigation, two of which center on the importance of a medical expert.
First, in virtually every state, you cannot file a medical malpractice case unless you have had an expert review your medical records and certify under oath that you received negligent care.
In some states, this is done by affidavit. In others, you need to file a certificate of merit.
Second, you cannot have a medical malpractice case without having an expert witness willing to provide testimony on your behalf. That testimony must establish to a reasonable degree of professional certainty what the standard of care is and that your doctor breached it. That qualified medical professional typically must practice in the same specialty as the doctor you are suing. They can be hard to find.
What Can You Recover?
To protect the medical profession, most states have imposed limitations on the damages you can recover in a malpractice case.
Most states allow you to recover your full economic damages (e.g., lost earning capacity, emergency room costs, and other medical bills, etc.). Most states, however, limit the amount of non-economic damages (e.g., emotional distress, mental anguish, pain and suffering, etc.) with a damage cap
Can I Sue My Doctor? Contact an Experienced Attorney
Medical malpractice lawsuits are tough to win. Patients lose approximately 82% of cases that go to trial. With the expert witness and certificate of merit requirements, they can be very expensive.
You can go with a general personal injury lawyer. But your better option is to retain an experienced medical malpractice attorney. Cases arising out of a doctor's negligence are far more complicated than typical personal injury cases.
You benefit from developing an attorney-client relationship with a specialist. And if you are contacted by an insurance company, definitely don't try to negotiate with them on your own.
Remember the Statute of Limitations
The statute of limitations for medical malpractice suits differs from state to state, but they generally are short. In some states, you have as little as a year in which to bring your claim. If you want to learn more about medical malpractice claims, get legal advice from a law firm promptly. Most medical malpractice lawyers provide an initial free consultation, and many provide a free case evaluation.
Contact a qualified medical malpractice attorney to make sure your rights are protected.