From a legal standpoint, you can handle your own medical malpractice case without hiring an attorney, but whether or not that’s a good idea is the more important consideration.
When you’re faced with any kind of legal action, the decision to hire an attorney or go it alone and represent yourself is one that should be weighed very carefully. In particular, you might focus on two key questions: What is at stake? And how complex is the legal territory? Let’s look at both of those questions in the context of a medical malpractice case.
If you’re involved in a fender bender car accident and your car is damaged, you can take the other driver to small claims court and try to get him or her to pay the $1,500 it’s going to take to get your car fixed and back on the road. It’s great if you win, but it’s not the end of the world if you lose.
Many medical malpractice cases involve significant harm to the patient, the need for a long-term course of (very expensive) health care, and even the prospect of lifelong disability. Add that to the fact that you’re going to need to hire a qualified medical expert witness (an expensive but necessary step), and it’s easy to see how losing the case could be devastating.
Returning to the fender bender case example, in small claims court it would be pretty easy to make your case. You could produce a police report showing the reporting officer’s conclusion that the other driver was likely at fault. You could produce two sworn written statements from eyewitnesses saying that they saw the other driver run the stop sign. And you could produce two repair estimates to establish what you lost.
But it doesn’t get much more complex than a medical malpractice case. You’ll need to prove complicated legal and medical issues like the applicable medical standard of care that the doctor should have complied with in your case, and you’ll need to be prepared to refute the other side when they come to the table with their own medical evidence. What’s more, many states require medical malpractice plaintiffs to jump through certain procedural hoops at various points in the case.
As soon as a claim is made, the doctor's malpractice liability insurance policy will kick in, and it almost certainly includes representation by experienced defense attorneys. You're not going to be dealing with your doctor directly - he or she will probably have very little to do with it until trial.
The defense attorneys are probably not going to take your claims seriously unless you're represented by a qualified attorney.
As with any kind of legal matter, if you think you have a valid medical malpractice claim, your best bet is hiring a lawyer who has significant experience handling cases like yours. In fact, a lawyer’s experience may be particularly important when it comes to medical malpractice cases, for a number of reasons.
First, almost every medical malpractice case turns on the issue of whether or not medical negligence on the part of a doctor (or other health care professional) was the cause of the patient’s injury or harm. It’s not enough to show a less-than-desirable result after medical treatment.
The keys are 1) establishing the medical standard of care, meaning the level of care that was appropriate under the circumstances, and 2) demonstrating how the defendant fell short of meeting that standard. And in almost all cases, you’ll need the help of a medical expert witness to help you establish these things. An experienced medical malpractice attorney will be part of a network of professionals -- doctors, consultants, medical experts who have served in a variety of cases, and other medical malpractice attorneys -- and will utilize this network to locate and hire the right medical expert for your case.
Second, from a procedural standpoint, medical malpractice cases can be unique (and pretty complex) depending on the state where you live. You (and your attorney) will need a good understanding of the procedural requirements necessary before - or soon after - filing the lawsuit, including filing an affidavit of merit, complying with pre-lawsuit screening, and other special steps . An experienced medical malpractice lawyer will be very familiar with these rules, and will know how to avoid pitfalls and delays so that your case stays on track.
For medical malpractice cases, attorneys who represent the plaintiff (the patient who has been injured by medical negligence) usually do so on a "contingency" basis, which means the attorney’s payment comes as a set percentage of what the plaintiff ends up receiving after a settlement or a successful jury trial. If the plaintiff receives no payment or ends up losing at trial, the attorney is not paid. But before you sign a contingency agreement, check to see if you will be on the hook for things like filing fees and other costs.
In a number of states, there are laws in place that limit the percentage that an attorney can receive in a medical malpractice case. Some states, like California, cap the contingency percentage as part of a sliding scale. The lawyer’s fee percentage goes down as the amount of damages awarded to the plaintiff goes up.
In California, an attorney may not collect more than the following in representing a medical malpractice client:
A few other states have similar "sliding scale" laws, although the percentages and dollar amounts vary, including Connecticut, Florida, Illinois, New Jersey, and New York.
In a handful of states, the court sets (or at least can consider the reasonableness of) the percentage that a plaintiff’s medical malpractice lawyer can receive after a successful case. For example, in Arizona, either party may request that the court review the reasonableness of an attorney fee agreement in a medical malpractice case. And in Tennessee, the court itself sets the amount that the attorney will receive, and the lawyer's "cut" may not exceed 33 and 1/3 percent.
If you're weary of finding and choosing an attorney, you can use the forms on our site to contact medical malpractice attorneys to review your case without committing to any one lawyer, or see, The Right Lawyer for Your Medical Malpractice Claim, for tips on finding the right attorney.