Filing a Medical Malpractice Claim Without a Lawyer

As far as the legal system is concerned, you can handle your own medical malpractice case without hiring an attorney, but whether that’s a good idea is the more important consideration.

When you’re considering 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:

1. What's at stake?
2. How complex is the legal territory?

Let’s look at both of those questions in the context of a medical malpractice lawsuit, then discuss some other points to consider when it comes to getting a lawyer's help with this kind of case.

There's (Usually) More at Stake in a Medical Malpractice Case

If you’re involved in a fender-bender car accident and your vehicle is damaged, you can take the other driver to small claims court and try to get the $3,500 it’s going to take to get your car fixed and back on the road. It’s great if you win, but it’s also not the end of the world if you lose.

In comparison, many medical malpractice cases involve significant harm to the patient, the need for a long-term course of additional (often expensive) health care, and even the prospect of temporary or permanent disability. Add in the additional up-front costs of putting together a solid medical malpractice case, and it’s easy to see how losing the case could be devastating.

Medical Malpractice Is Complex Legal Territory

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, and two sworn written statements from eyewitnesses who saw the other driver run the stop sign. And you could produce two repair estimates to establish your losses.

But it doesn’t get much more complex than a medical malpractice case, from a number of angles.

Proving Your Medical Malpractice Case

You’ll need to prove complicated legal and medical issues, including:

• the medical standard of care that applied to the situation in which you received treatment from the defendant health care provider
• exactly how the health care provider fell short of that standard when treating you (this means showing medical negligence on the part of the provider, not just a less-than-desirable result), and
• the nature and extent of the medical harm caused by the health care provider's mistake (how your condition was made worse, and/or what new injuries resulted).

Hiring and Working With Medical Experts

You’re almost certainly going to need to hire a qualified medical expert witness (an expensive step) to:

• sift through all your medical records and present the best evidence that supports your claim, and
• refute the other side when they come to the table with their own arguments and experts.

This is one reason why a medical malpractice lawsuit is often described as a "battle of experts."

Complying With Court Filing Requirements

Many states require medical malpractice plaintiffs to jump through special procedural hoops at various points in the case (more on these later). You'll need to anticipate and comply with these requirements in order to avoid pitfalls and keep your case on track.

Negotiating a Settlement

As your medical malpractice claim proceeds, you're going to need to be prepared to discuss settlement with the defendant health care provider (and their insurance company). This will require not just sharp negotiating skills, but a willingness to stand up for yourself and fight for a fair result—which includes the nerve to hold your ground and press on with the lawsuit if a fair settlement isn't offered.

Learn more about the timeline of a medical malpractice case, and why medical malpractice lawsuits are challenging.

You'll Be Up Against Experienced Defense Attorneys

As soon as a medical malpractice claim is made, the doctor's malpractice liability insurance policy will kick in, and that coverage almost certainly provides for representation by experienced defense attorneys. You're not going to be dealing with the health care provider directly; they'll probably have very little to do with the case until deposition or trial testimony.

The defense attorneys aren't likely to take your claims seriously unless you're represented by a qualified attorney, and as we mentioned above, you're likely to soon find yourself out of your depth when it's time to argue your case and negotiate a fair settlement.

Can I Use My Previous Personal Injury Lawyer?

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 experience handling cases like yours. In fact, a lawyer’s experience may be particularly important when it comes to medical malpractice cases, which are complex in all of the ways we covered earlier. Besides being familiar with what it takes to put together a sound case, 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—they can rely on to put together your best case, and
• have a good understanding of the procedural requirements you'll need to meet before (or soon after) filing the lawsuit, including filing a certificate of merit, complying with pre-lawsuit screening, and other special steps.

What Will a Medical Malpractice Lawyer Cost?

Medical malpractice attorneys usually represent plaintiffs (the patient injured by medical negligence) 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 successful jury trial. If the plaintiff receives no settlement or ends up losing at trial, the attorney isn't paid.

But before you sign a contingency fee agreement, check to see if you will be on the hook for things like filing fees and other costs. Learn more about how medical malpractice lawyers are paid.

Some States Cap Medical Malpractice Attorneys' Fees

In a number of states, laws limit the percentage 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 medical malpractice plaintiff goes up. 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 (like Arizona), the court can consider the reasonableness of a medical malpractice lawyer's fee upon request.

Learn more about finding the right medical malpractice lawyer for you and your case.