If you think that you might be the victim of medical malpractice, you need to investigate how to sue your doctor. While most aspects of medical malpractice lawsuits are no different from standard personal injury lawsuits, there are some extremely important differences. Here are some of the most important differences:
- a different statute of limitations in medical malpractice cases
- the need to have a qualified medical malpractice lawyer
- the need to have a qualified medical expert witness agree to testify for you, and
- in many states, even before the lawsuit is filed, the medical expert must write a report stating that the defendant doctor was negligent.
Let's take a closer look at these challenges when it comes to suing your doctor.
Medical Malpractice Statutes of Limitations
All states have very specific deadlines for filing medical malpractice lawsuits. These deadlines are called statutes of limitations. Medical malpractice statutes of limitations can be very complex because most states have created a multi-part statute of limitations for medical malpractice cases. The medical malpractice statute of limitations often includes:
- the standard deadline
- the “discovery rule” exception for situations in which the patient did not know or could not reasonably have learned that the physician was negligent
- the deadline for minors, and
- an absolute limit, called the statute of repose, on how long a patient has to file the lawsuit even if the patient did not known and could not reasonably have known of the malpractice
Depending on your state’s laws, the statute of limitations in a medical malpractice case could be shorter than the regular statute of limitations, it could be longer, or it could just be, well, different and difficult to understand. To make absolutely sure that your particular case does not run afoul of your state’s medical malpractice statute of limitations, you should contact a qualified medical malpractice lawyer as soon as you think that you might have a medical malpractice case. (Also see our State-by-State Medical Malpractice Statute of Limitations articles.)
Finding a Qualified Medical Malpractice Lawyer
Finding a qualified and experienced lawyer is critical in a medical malpractice case. It is far more important to have a good lawyer in a medical malpractice case than in a standard personal injury case for several reasons.
First, medical malpractice is a specialty involving complex legal and medical issues. Most personal injury cases involve orthopedic or neurological issues, but medical malpractice cases can involve any organ or system in the body. In a medical malpractice case, you want a lawyer who is more accustomed to dealing with complex medical issues.
Second, you need an experienced medical malpractice lawyer in order for that lawyer to get anywhere in settlement discussions with the doctor’s insurance company. Medical malpractice insurance companies simply will not respect a plaintiff’s lawyer who does not specialize in medical malpractice when it comes time to talk settlement. If your lawyer has never handled a medical malpractice case before, your case has very little chance of getting settled and it will almost definitely go to trial.
Third, medical malpractice cases almost always require an expert medical witness or a team of medical experts to prove liability. Because most doctors will not agree to testify against a fellow doctor, a good medical malpractice lawyer must have access to a network of doctors who are willing to testify as experts in medical malpractice cases. Qualified doctors who will do this are few and far between, and they generally don’t advertise. It takes a lawyer who knows what he/she is doing to find these doctors.
Fourth, medical malpractice cases are expensive (in part because of the cost of these medical experts). Good medical malpractice lawyers accept this and are prepared to pay these costs, which could reach tens of thousands of dollars. Inexperienced medical malpractice lawyers may not want to front these costs and/or may not be able to afford the costs, and you can lose your case if neither you, nor your lawyer, can afford to pay the necessary experts.
The Medical Expert’s Report ("Offer Of Proof" or "Certificate of Merit")
In many states, the plaintiff’s lawyer must submit what is called an Offer of Proof or a Certificate of Merit when (or soon after) filing the lawsuit, and before any pretrial investigation occurs.
The purpose of the Offer of Proof or Certificate of Merit is ensure that the case is at least arguably a legitimate medical malpractice case.
Depending on the state’s laws, this Offer of Proof or Certificate of Merit can require a qualified physician to review the plaintiff’s medical records and write a report stating that, in his/her opinion, the defendant physician was negligent in his/her care of the plaintiff, and that the physician’s negligence caused the plaintiff’s subsequent injuries.