If you believe that you or a family member have been harmed by care received from a doctor or hospital you may be consider suing for medical negligence and wondering what to expect if you do. Personal injury and medical malpractice laws vary by state, but there are some key similarities that are helpful to understand.
Civil Case
When you sue a doctor or hospital for medical malpractice caused by negligence, you are bringing a lawsuit in civil court, not criminal court. You (or the patient or estate of the patient if deceased) are the Plaintiff and the doctor(s) and/or hospital who you are alleging malpractice against are the Defendants. The Plaintiff has the burden of proof in this situation and must be able to prove:
- Negligence: the care or lack of care stemmed from a deviation of the locally accepted medical standard of care for your illness, injury or symptoms.
- Negligence was Proximate Cause: in other words, that the negligence was the directly related cause of further harm, injury or illness you suffered. This can be difficult to prove because most likely you were seeing your doctor or in the hospital for some other underlying reason which, the defense will argue, was the cause of any additional injury or illness.
- Damages: you have to clearly show what the financial damages are that you have suffered as a result of the malpractice in terms of lost wages, increased medical expenses...anything attributable to your life after the malpractice.
Hurry Up and Wait
The average statute of limitations for bringing a medical malpractice lawsuit is 2 years from the malpractice incident, although there are some exceptions when the patient has died, or did not immediately realize the malpractice had occurred or when the patient is a child. As an example, in Michigan a child under the age of 8 who is the victim of malpractice has until their 10th birthday to file a malpractice lawsuit.
The wait part is that it can be a couple of years, or even more before your case actually comes to trial. The process of preparing for the trial is quite complex and requires massive amounts of information gathering, and review and analysis of data.
Expert Testimony
Very specific medical expert testimony will be needed to corroborate that a deviation from the standard of care did occur. Your entire case depends on whether or not a doctor who practices the same type of medicine or performs the same type of procedure agrees that your care was not standard. Without this expert testimony, you have no case regardless of how much you were injured.
Business Decision
Attorneys sometimes have to turn down representing malpractice cases because the costs to mount a proper defense (just the expert testimony alone can cost tens of thousands of dollars) is not justified by the likely damage award. Do not take this personally, yet feel free to take your case to a different attorney for a second opinion while being mindful of the statute of limitations.
Get Legal Help
Many malpractice attorneys will have a nurse, doctor or other qualified medical professional on staff to conduct your initial interview with the firm and begin the process of analyzing your potential case. A local, experienced malpractice attorney should be consulted if you suspect medical negligence that has caused harm or injury.
