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:
Let’s look at both of those questions in the context of a medical malpractice case, then discuss some other points to consider when it comes to getting a lawyer's help.
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 $2,500 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.
Many medical malpractice cases involve significant harm to the patient, the need for a long-term course of expensive health care, and even the prospect of lifelong disability. Add the near-certainty that you’re going to need to hire a qualified medical expert witness (an expensive 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, 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 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, 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 (more on these later).
Learn more about why medical malpractice lawsuits are challenging.
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; he or she will probably have very little to do with the case until deposition or trial testimony.
The defense attorneys are probably not going to take your claims seriously unless you're represented by a qualified attorney, and you're likely to soon find yourself out of your depth when it's time to argue your case and negotiate a fair settlement.
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, for a number of reasons.
First, almost every medical malpractice case turns on whether medical negligence on the part of a doctor (or other health care professional) was the cause of the patient’s harm. It’s not enough to show a less-than-desirable result after medical treatment. The keys are:
As mentioned above, in almost all medical malpractice cases you’ll need the help of a medical expert witness to help you establish liability. 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 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 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. 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.
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 is not 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.
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.
You can use the contact tools on our site to reach out to a medical malpractice lawyer near you, or learn more about finding the right medical malpractice lawyer for you and your case.