First Steps in a Medical Malpractice Claim

Medical malpractice cases arise when a patient is injured because a healthcare professional failed to meet the accepted standard of care. These cases can be difficult for the injured person or their family. 

The process can be overwhelming, especially when dealing with serious medical complications. You’ll need to complete several tasks before you can bring your claim to a courtroom.

Below are some basic first steps in bringing a medical malpractice lawsuit. No matter where you are in the legal process, it’s a good idea to get legal advice. Find a medical malpractice lawyer near you to get a case review.

How To Tell if a Medical Care Provider Was Negligent

The majority of healthcare providers aim to exercise the highest standard of care for all patients, but mistakes happen. As medical malpractice lawyer Michael Dalton puts it, “Almost everyone we speak with has had a bad experience with a medical provider or institution. Bad outcomes happen regularly in medicine, but a bad outcome alone is not negligence.”

You or a loved one may have a medical malpractice claim if you suffered a personal injury due to:

• Poor or substandard medical care
• Misdiagnosis
• Lack of consent
• Breach of doctor-patient confidentiality

To prove medical negligence, however, Dalton explains that you need a combination of these elements:

• Liability (duty of care and breach of that care)
• Causation
• Damages

Let’s break that down:

Liability and the Duty of Care

In legal terms, medical negligence is the failure to provide proper care. Medical negligence asks whether a patient would have received the same quality of care from another provider under similar circumstances. The essential question in determining liability is: Did the medical professional breach their duty of care?

“An expert will be able to say to what degree the defendant’s actions fell below the standard of care,” Dalton explains. Your attorney can help you find the right experts for your case. 

Causation

Did the medical professional/institution actually cause your injuries? This may seem like a simple “yes,” but the answer is rarely that simple. You have to be able to show that without the medical professional’s actions, the injury would not have occurred. This gets complicated if you were under multiple treatments at the same time, you had pre-existing conditions, or if you did something that helped cause the harm.

Damages

You must be able to show that the medical professional’s actions led to actual harm. For example, Dalton asks, “Would the plaintiff have needed the surgery/treatment anyway? If a doctor missed something on an exam, but another provider diagnosed the condition and treated it, there is not a claim because it did not cause any damages.”

Medical malpractice cases are expensive and challenging to prove. According to Dalton, “your claim must have sufficient damages (e.g., death, serious physical injury, pain and suffering, or loss of past or future earnings potential) to make it worth prosecuting.”

If, after considering the factors above, you believe you have a medical malpractice claim, you should speak with a lawyer as soon as possible. The moment you raise concerns about your injury is the moment the provider and their insurer will start investigating. Your attorney can help evaluate and start building your case before you even take action.

Contact the Medical Professional Involved

Before filing your medical malpractice case, your attorney may recommend contacting the doctor or medical professional who caused your injury.  In some cases, medical providers are willing to perform services, sometimes free of charge, to correct a problem or provide a solution.

Contact the Relevant Medical Licensing Board

If contacting the medical professional does not help the situation, you or your lawyer should contact the licensing board that governs medical licenses.

While licensing boards cannot order doctors to compensate you for medical bills, they can issue warnings. Licensing boards can also discipline the practitioner.

Know How Long You Have To File a Claim

When deciding whether to file a medical malpractice claim, it is important to find out the amount of time you have to legally bring the claim.

All civil claims, including medical malpractice cases, have time limits on when they must be filed. In legal terms, time limits are called statutes of limitations. These limits require you to file your claim within a certain time period.

Depending on where you are, the clock starts either when the injury occurred or when you reasonably should have discovered your injury. Once time is up, you lose the ability to recover money and non-economic damages for your injuries. Check the statute of limitations in your state to ensure that you do not miss the deadline to file your claim.

Get a Medical Assessment To Confirm Your Case Has Merit

In medical malpractice law, some states require patients to file a certificate of merit before or at the time they file suit. A certificate of merit provides some evidence that the injuries you suffered were a result of a healthcare professional’s negligence.

To obtain one, contact an expert witness, usually another physician. The expert witness will review your medical records and give an expert opinion.

The expert will certify that the healthcare provider did not use accepted medical practices and caused your injuries. Your attorney will file the certificate of merit. This confirms that you spoke with a medical expert and that your medical malpractice claim has merit.

Consider an Out-of-Court Settlement

Medical malpractice cases can be costly and take a long time. This is the reason why most cases settle out of court.

Medical malpractice insurance companies reject a large number of medical malpractice claims. Trying to settle out-of-court may be safer than risking recovering nothing at trial.

How To File a Medical Malpractice Claim in Court

If you determine that your case warrants a lawsuit, a new series of steps awaits you. 

A few of the initial medical malpractice lawsuit steps include:

• Finding an attorney who will represent you
• Gathering evidence, such as medical records and communications
• Identifying the proper court with jurisdiction
• Filing paperwork with the court

 Given the time limits, these steps may need to happen promptly.

Thinking of Filing a Medical Malpractice Case? Get Help From an Experienced Attorney

“The overwhelming majority of medical negligence cases return defense verdicts,” Dalton cautions. Not only do medical malpractice insurers vigorously defend these cases, but plaintiffs must also “overcome the innate sympathy and trust a jury may have for a medical provider accused of negligence.” That’s why finding a qualified medical malpractice attorney is so important when suing medical professionals. 

A medical malpractice lawyer will discuss the strengths and weaknesses of your case. They can also help you plan a course of action. Seek legal advice from a medical malpractice attorney.