Bringing a claim for medical negligence is one of the most complex legal actions in all of civil law. Because there is often many hundreds of thousands of dollars or more at stake, the hospital and doctors medical malpractice insurance company will vigorously defend every case. It is important that only those cases deemed meritorious by an expert medical professional be brought to civil court to ensure the best chance of a successful claim.
1. Find a Medical Malpractice Lawyer
Most general civil trial attorneys are not knowledgeable or experienced enough to successfully handle a medical malpractice case. As a result, most will refer patients to attorneys whose firms focus on medical malpractice claims.
Medical malpractice lawyers have the requisite experience and skill to take a medical malpractice claim to a successful end. These lawyers usually have a medical doctor in the office, or nearby, to investigate every case and determine if the medical evidence supports bringing a medical malpractice lawsuit.
2. Get the Legal Elements Established
The first thing your attorney will do is attempt to establish the four basic legal elements required for a meritorious medical malpractice case: 1. Duty, 2. Negligence, 3. Injury and 4. Causation.
The two most difficult elements are negligence and causation. Essentially, your attorney must prove, through evidence and expert medical testimony, that the doctor, nurse or other hospital staff failed to do their duty to the required level of care, and that failure caused an undue injury.
It may sound straightforward, but medical negligence is often a very grey line and difficult to establish.
3. Get a Certificate of Merit
In an attempt to reduce the number of unsuccessful medical malpractice lawsuits using up the courts limited time, many states have implemented a system that forces every case to be "certified" as meritorious by a medical doctor. What this means is that, a medical doctor has evaluated the case, and certified that there is potential for medical negligence in the details of the claim.
4. File the Suit and Notify the Parties Involved
Once it has been determined that the legal elements are present, and a medical doctor has certified the case as legitimate, then the suit can be filed and the defense notified.
At this point, the insurance company covering the doctor or hospital will get their medical malpractice defense attorneys to investigate the claim and begin building their defense.
5. Settlement Negotiation
Most medical malpractice cases will be settled out of court, to avoid the high costs of taking a case to court. If the patient has a strong case, then the settlement amount should be substantial. If there are any holes or weaknesses in the claim, then the defense will likely be reluctant to offer a large settlement amount.
If the plaintiffs attorney believes that the case is winnable, then going to trial is always an option, but does carry with it some risks, as well as potentially large awards. Most cases that win at trial will get well over one million dollar awards. That being said, there is always the possibility of losing, in which case the patient would get nothing.
Settling the case outside of court guarantees some amount of compensation, but could be far less than a jury award. It all depends on the details of the case, the evidence and the extent of the damages.
