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How to File a Medical Malpractice Lawsuit

5 min read

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By Bronwyn Fields

Learn how to file a medical malpractice lawsuit. Understand the steps to take to gain compensation for damage done by the negligence of medical professionals.

Filing a medical malpractice suit against a physician or health care provider of any sort is a complicated task and one that definitely requires the assistance of an experienced attorney. Each state has unique requirements attached to medical malpractice lawsuits, with a lot of technical hoops to jump through. Take a look at the basics of medical malpractice and the procedures involved in filing a medical malpractice case.

What Is Medical Malpractice?

Medical malpractice is the name for the situation in which a health care provider fails to provide proper care. If a different medical provider (a physician, a nurse, a hospital or another health care provider) would have provided a different standard of care in the same circumstances and if you were harmed by the provider’s negligence, you may have a medical malpractice case.

Common types of medical malpractice include but are not limited to:

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What Is Required to File for Medical Malpractice?

Alleging a case of medical malpractice isn’t enough. You also have to prove that medical malpractice occurred.

Establish a Basis for Medical Malpractice

Requirements for medical malpractice cases vary from state to state, but in all cases, you have to establish a few basic facts. You must show that the health care provider you are suing owed you a duty of care.

You also have to show that they failed to observe that duty of care through their actions or negligence. For example, if a surgeon left a surgical sponge in your body after surgery, that action is a breach of the duty of care. An example of medical negligence might occur if a doctor fails to diagnose a condition that a similar doctor would have caught and, therefore, fails to treat you for that condition.

You also have to establish that the health care provider’s action or negligence caused you injury. The line of causation between the negligence and the harm you received must be clear.

Notify Health Care Providers of Your Intent to File Suit

In some states, you’re required to provide advance notice of your lawsuit to both your negligent health care provider and their insurance companies. Even if it’s not required, it’s a good idea to provide that notice. In some cases, the medical provider’s insurance company may offer you an acceptable settlement before you file the lawsuit, which can save you a lot of time and effort. Let your medical malpractice attorney handle all communications with the insurance company.

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Comply With Your State’s Pre-Suit Requirements

You also must comply with various requirements imposed by your state before you can file your lawsuit. These might include:

Your medical malpractice attorney can make sure you meet all these requirements correctly and on time. They can also help you find the right expert witnesses, who are typically other health care providers, to testify on your behalf.

Warning: If you don’t comply with your state’s pre-suit requirements, there’s a good chance your case will be dismissed.


What Evidence Do I Need to Collect?

The primary evidence you need in a medical malpractice case is your medical records. Request a copy of all records as soon as you consider filing a lawsuit, and sign the appropriate releases to let your attorney collect the records.

As soon as your attorneys have your medical records, they can start to analyze your case. Once they determine that you have a valid medical malpractice case, they will start to seek medical opinions and gather expert witnesses to bolster your case.

What Is a Certificate of Merit, and Do I Need One?

In many states, you must file a certificate of merit before you can file a medical malpractice suit. This certificate requires a medical expert to review your medical records and determine that your health care provider did indeed fail to meet the standard of medical care required.

In some states, the certificate requires an affidavit stating the standard of care that applies in your case and a statement of how your health care provider failed to meet that standard of care. The certificate of merit establishes that your medical malpractice case has merit and is not frivolous. Once it has been filed and accepted, you’re free to file your lawsuit.

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Can I Still Sue for Medical Malpractice Years Later?

Every state limits the time in which you can sue for medical malpractice, but not all states impose the same time limit, known as a statute of limitations. If you don’t file your medical malpractice claim within the statute of limitations, you may lose your rights to recover any compensation for the harm done to you.

In most states, you have a limit of two to three years to file your medical malpractice case. A few states allow a little more time. For instance, Alabama, Minnesota, Florida and Ohio allow up to four years; Maryland, Hawaii, and Mississippi allow five, six and seven years, respectively; and Missouri, North Carolina and Virginia may allow up to 10 years depending on the type of case. In contrast, California, Kentucky, Louisiana, Nevada and Tennessee may allow as little as one year, depending on the details of the case.

In some states, the statute of limitations clock starts ticking as soon as the negligence occurs. In more lenient states, the timeline begins as soon as the harm or negligence is discovered. Your medical malpractice attorney can make sure you’re staying within the statute of limitations.

Your medical malpractice attorney can also help you gather the needed evidence and other pre-suit requirements. In addition, rely on your attorney to know when to settle a case out of court and when to proceed to trial.

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