Imagine going in for routine surgery and waking up to find that the surgeon operated on the wrong limb. Or, a hospital fails to act on test results that could have helped diagnose your illness sooner, resulting in a worsened prognosis.
These are both examples of medical malpractice, and they are common in the U.S. Statistics show that over 250,000 people die due to medical errors in America each year.
If you or a loved one has been a victim of medical malpractice, you may be wondering how to file a lawsuit. Seeking legal help can be complex and daunting, but it’s worth the effort if you want reasonable compensation.
Keep reading to learn some legal tips to keep in mind if you’re considering pursuing a medical malpractice claim. But first, learn what medical malpractice means.
What Is Medical Malpractice?
Medical malpractice occurs when a health care professional deviates from the standard of care while treating a patient. This can happen in several ways, such as:
- Misdiagnosing or failing to diagnose an illness or injury
- Delaying treatment
- Failing to monitor a patient properly
- Making a surgical error
- Prescribing the wrong medication
- Birth injuries
These are just a few examples of medical malpractice. An action qualifies as medical malpractice if it results in an injury to the patient and if the health care professional’s actions deviate from the standard of care.
The Standard of Care
To prove that medical malpractice has occurred, you will need to establish what the standard of care is in your particular situation. The standard of care is the level of care that a similarly situated health care professional would have provided under the same circumstances.
For example, if you go to the ER with chest pain, the standard of care would be for the doctor to order a series of tests to rule out a heart attack. If the doctor failed to do this and you later had a heart attack, they would have deviated from the standard of care.
On the other hand, suppose you went to the ER with chest pain, and the doctor ordered a series of tests. Suppose you still had a heart attack. The practitioner would not be liable for medical malpractice because they provided the appropriate standard of care.
Proving Deviation From the Standard of Care
To win a medical malpractice lawsuit, you will need to prove that the health care professional deviated from the standard of care. You’ll also need to show that this deviation resulted in an injury.
Proving deviation can be difficult to do without the help of a medical expert. The expert will review your case and attest that the healthcare professional’s actions fell below the standard of care.
What Steps Should You Follow When Filing a Lawsuit?
If you think you may have a medical malpractice case, there are certain steps you should take to protect your legal rights. Do the following to ensure you have the best chance of success:
Hire an Experienced Medical Malpractice Attorney
A medical malpractice case is not one of those cases you can handle without an attorney’s assistance. You’ll need to hire an attorney to help you file your case within the statute of limitation.
The statutes differ from state to state, so you’ll need to check with your attorney to determine how long you have to file. Experienced medical malpractice lawyers will be familiar with the deadlines in your state and can ensure your case is filed within the required timeframe.
You also need the legal help of an attorney because you may need to comply with pre-lawsuit requirements when filing your case. These include review boards and medical expert affidavits. You may also need to give notice of your intention to file a lawsuit.
In some cases, failure to comply with these requirements may lead to your claim’s rejection. An attorney who has handled malpractice cases before will understand the procedures and ensure you complete them before filing a lawsuit. They’ll have the contacts needed to get your case moving as quickly as possible.
An experienced medical malpractice attorney will know how to find the right medical expert to review your case. They’ll review your case and determine whether you have a valid claim.
Get Medical Records and Bills
You’ll need to provide your attorney with all your medical records and bills related to the care in question.
These records will most likely be the best evidence of the healthcare professional’s negligence. Your lawyer will use these documents to prove the extent of your injuries and how much money you should recover in damages.
Since there are privacy laws in healthcare, you’ll need to sign a release form that will allow your lawyer to request these records from your doctor. Your attorney will likely hire a medical expert to review your records.
The expert will provide an opinion on whether the health care professional met the standard of care. They’ll also determine whether their deviation from that standard resulted in your injuries.
The best legal tip for this step is to deliver the medical records to your attorney as soon as possible. Early delivery will give your lawyer more time to prepare a strong case. They’ll have more time to analyze the case and get medical expert witnesses on board.
Notify the Involved Medical Professional and the Insurer
You may be required to give the healthcare professional written notice that you intend to file a medical malpractice lawsuit against them. The amount of time you have to do this varies by state, so it’s essential to check with your attorney.
Failing to meet this requirement can result in your claim’s dismissal. It’s important to note that this is not the same as filing a lawsuit.
Providing notice lets the medical professional know that you plan to take legal action against them. This step allows the healthcare provider to investigate the allegations and offer a settlement before a lawsuit is filed.
The notice will trigger insurance companies to begin their own investigation. Your attorney will likely be in contact with the insurance companies throughout the process. The insurance company may be able to negotiate a settlement and avoid the need for a lawsuit.
You’ll need an attorney at this stage because the insurance company’s lawyers may bully you into accepting a lowball settlement offer. An experienced medical malpractice lawyer will understand how these insurance companies operate and fight for the best possible outcome.
Contact the Medical Licensing Board
In some cases, you may need to contact the medical licensing board in your state to file a complaint against the healthcare professional. The board will investigate your claim and decide whether to take action against the doctor in question.
If they find evidence of malpractice, the board will take disciplinary action against the practitioner. This could involve anything from a slap on the wrist to revoking their license.
While this won’t get you any compensation, it may prevent the healthcare professional from harming other patients. This step will determine whether you have a strong case.
The board can provide you with information about your rights and options under the law. This step is only necessary if the medical professional’s negligent actions result in serious injuries or death.
Get a Medical Assessment
You’ll need to get a medical assessment to prove the extent of your injuries. The assessment will usually involve getting a second opinion from another healthcare professional.
The doctor will review your records and conduct a physical examination. They’ll then provide a report that details the nature and extent of your injuries.
The lawyer will use the report to determine how much compensation you’ll be eligible to receive. You should get this assessment as soon as possible to ensure your injuries are well-documented. A faster assessment will make it easier to prove the healthcare provider was negligent.
File a Lawsuit
If you’re unable to reach a settlement with the insurance company, you’ll need to file a lawsuit. Your attorney will handle this process and represent you in court.
The lawsuit will detail the injuries you suffered and how the healthcare professional’s negligence caused them. It will also request compensation for your medical expenses, lost wages, and pain and suffering.
The court will then review the evidence and decide whether the healthcare professional was at fault. If they find that the practitioner was negligent, they’ll order them to pay compensation to you.
Understand How to File a Lawsuit for Medical Malpractice
If you or your loved ones have been victims of medical malpractice, it’s crucial to understand how to file a lawsuit. The steps in this process can seem daunting, but an experienced attorney can help you through each step of the process. Make sure you follow the above steps and you’ll get the compensation you deserve.
Keep tabs on our blog for more helpful tips.