What are the steps involved in filing a medical malpractice lawsuit?


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Question:

What are the steps involved in filing a medical negligence lawsuit?

Answer:

This question raises some important procedural complexities that are unique to medical malpractice cases.

To get most personal injury cases started in court, the person who has been injured (the plaintiff) simply files the initial complaint which, among other things, states the causes of action against the defendant. To be sure, there are certain local requirements that must be met in all civil injury cases, including participation in mandatory settlement conferences and other procedural hoops.

But medical malpractice cases are different, and depending on the law in your state, you may need to do quite a bit more at the outset of the case -- either concurrent with or shortly after filing the initial civil complaint.

In a number of states, a medical malpractice plaintiff must file an affidavit or sworn opinion from a medical expert along with the complaint. For example, in Florida, the initial complaint must be accompanied by a written opinion by a qualified expert medical witness, stating that the plaintiff has a supportable claim for medical malpractice. In Maryland, similar certification must be filed with the court within 90 days of the filing of the initial complaint.

That's not all. Medical malpractice plaintiffs may need to participate in mediation, arbitration, or some other form of alternative dispute resolution in the early stages of the case. Going back to Florida as an example, all medical malpractice plaintiffs (and all parties to the case) must attend mandatory mediation within 120 days of the filing of the lawsuit.

Finally, a few states require a potential medical malpractice lawsuit to pass through a “pre-screening” panel which is meant to weed out frivolous cases. These are mandatory in some states, while other states will convene such a panel only at a party's request.

All of this is to say that it is extremely important for medical malpractice plaintiffs to understand and abide by the procedural rules in place in their state. (Check the medical malpractice laws in your state.)

by: David Goguen, J.D.

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