Suing for Medical Negligence: What to Expect
If you are suing, or thinking about suing, a health care provider for medical negligence (which is another way of saying “medical malpractice” for the most part), you are no doubt wondering what lies ahead. This article discusses what the typical injured patient can expect in a medical malpractice lawsuit.
Expect a Few Hoops Before the Real Lawsuit Begins
Many states have a number of procedures you need to go through before you can actually sue for medical malpractice in court.
For example, some states have “screening panels” that review the facts and evidence of your case and decide whether or not you have a valid claim. You can still sue even if the screening panel thinks your case is a loser, but if you don’t submit your case to the screening panel first, the judge will likely throw your lawsuit out of court.
Other states require that you file an "affidavit of merit" (or a similarly-named document) with the court when you first begin the lawsuit. This is a sworn statement from a qualified medical expert testifying that you appear to have a valid case for medical malpractice. Once again, if you don’t provide the expert affidavit at the beginning of the case, the court will throw the lawsuit out. Depending on the state, there might be either a screening panel or an expert affidavit requirement or both or other similar requirements. (Click on your state link at Medical Malpractice Statues to find more information about medical malpractice laws in your state.)
Expect to Search for a Medical Expert Willing to Testify on Your Behalf
A medical expert witness isn't just needed for expert affidavits at the beginning of the case. Almost all medical malpractice cases require expert testimony from both sides.
This means that you need to find a qualified medical expert that is willing to attend a deposition and testify in court that you were injured by a health care provider’s negligence. Just who is qualified to testify as a medical expert witness is subject to a host of complicated and restrictive rules. An experienced plaintiff’s medical malpractice attorney will have a better network to draw from, but tracking down a qualified expert willing to testify on your behalf can be quite difficult, particularly if your case is a close call. Also, medical experts don’t work for free -- expect to pay a significant hourly rate. Some attorneys might front the medical expert expenses if they really think you have a winning case, but don’t count on it . . . and make sure to ask about your responsibility for litigation expenses up front.
Expect To Be Fighting the Clock
Medical malpractice lawsuits typically have a short statute of limitations. This means that you don’t have much time after your injury to start the lawsuit. If you miss the deadline, your case will be thrown out regardless of the facts. Most states have a statute of limitations of three years or less. Some states extend the deadline if you had no way of knowing you were injured for months or years after a negligent medical procedure, however.
When you consider the time it takes for your attorney to conduct an initial investigation, gather the facts and early evidence, track down a medical expert, conduct required settlement negotiations and/or go through the medical screening panel or other pre-suit requirements, you can begin to see why most medical malpractice plaintiffs are in a scramble to beat the limitations deadline from the moment they decide to sue. (Find your state's time limitation to file a medical malpractice case, see Medical Malpractice Statute of Limitations by State.)
Do NOT Expect Certainty
There are very limited circumstances in which your attorney will be confident about winning your medical malpractice case -- a surgical sponge left in your abdomen or a surgery performed on the wrong limb would probably qualify as rare "slam dunk" cases.
The vast majority of cases will ultimately hinge on which medical expert the jury decides to believe. It is true that as the case develops and the experts are deposed, your attorney may have more of an educated guess about how things might go in court, but there will never be certainty. Medical facts are too complex and the influences on jurors too unpredictable.
Do NOT Expect to Be Able to Sue for a Large Amount
Many states limit the amount a plaintiff can recover in a medical malpractice lawsuit. For example, subjective damages like “pain and suffering” might be capped at $250,000. In a state with that kind of cap, you wouldn’t be able to recover more than $250,000 plus any medical expenses, lost wages and other “concrete” damages caused by the malpractice. Note that some states allow a bigger recovery than others, some states have no damage caps at all and a few state supreme courts have ruled that damage caps are unconstitutional. Learn more about damage caps in medical malpractice cases.