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Should I Sue for Medical Malpractice?

By Andrew Chow, Esq. | Last updated on

Should you sue for medical malpractice? It's one way to get compensation for medical mistakes and omissions, but there are many factors for you and your medical malpractice attorney to consider.

In fact, "the great majority of patients who sustain a medical injury as a result of negligence do not sue," a 2006 study in the New England Journal of Medicine reported. But when patient-victims do sue and win, payouts can be substantial.

So what should you ask yourself before pursuing a lawsuit? Here are four general considerations:

1. Whom can you sue?

Should you sue for medical malpractice, a wide range of defendants may be involved. Doctors, nurses, and other medical professionals can all potentially be held liable for injuries due to their own negligence.

Hospitals, surgical centers, and other health-care facilities can also be sued for their employees’ mistakes — which is why they often classify medical staff as “independent contractors” to avoid liability.

If your injury is due to medicine or defective equipment, drug companies and medical device makers can also be sued.

2. What can you sue for?

Medical professionals are commonly sued for negligence, or breaching a duty of professional care. This can stem from misdiagnosis, errors in treatment, or mistakes made during surgery.

Medical-device and drug companies are often hit with product liability claims that allege defects or a failure to warn about known side effects.

3. What must you prove?

Proving medical malpractice often requires expert witnesses to testify about the appropriate standard of care. In some egregious cases, like when a sponge is left inside a patient after surgery, a legal theory called res ipsa loquitur allows a jury to infer that negligence occurred.

Suits against device and drug makers may require investigation into the production of the product in question.

4. Other factors to consider.

Each state’s statute of limitations for medical malpractice suits is different, so don’t delay in filing a claim. Some states cap damage awards in malpractice cases, especially if you’re suing a state entity. Like other types of lawsuits, medical malpractice cases are often settled out of court.

In fact, malpractice settlements led to larger average payouts, the study in the New England Journal of Medicine found. Of course, should you sue for medical malpractice, consulting with a local malpractice attorney can be your best bet for recovery.

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