First Steps to Sue a Doctor

Key considerations before filing a medical malpractice lawsuit against your doctor.

Updated by , J.D. · University of San Francisco School of Law

If you think you've been harmed by medical malpractice and you want to sue your doctor, you'll need to keep a few things in mind right at the outset of your case. There are some critical differences between medical malpractice claims and other civil lawsuits, including:

  • a specific statute of limitations that applies to medical malpractice cases
  • an experienced medical malpractice lawyer is typically crucial to a favorable outcome
  • a qualified medical expert witness usually must vouch for the merits of your case, and
  • in many states, plaintiffs must comply with special procedural rules before (or concurrent with) the filing of the lawsuit.

Let's take a closer look.

1. Check Your State's Statute of Limitations

All states have specific deadlines for filing a medical malpractice lawsuit, set by laws called statutes of limitations. These laws can be very complex, since in most states the deadline can vary depending on the circumstances of a particular case. So the text of a typical statute of limitations for medical malpractice lawsuits might include:

  • the standard filing deadline (i.e. one year, two years)
  • the "discovery rule" exception for situations in which the patient did not know (or could not reasonably have learned) that a health care provider's medical negligence played a role in their harm
  • an overarching time limit for filing the lawsuit (called a "statute of repose"), which applies regardless of any "discovery rule" extension, and
  • the deadline for minors, incapacitated individuals, and others.

Get details on the medical malpractice statute of limitations in your state. But in order to make absolutely sure that you're in compliance with this law, it's a good idea to discuss the specifics of your situation with a medical malpractice lawyer. Speaking of which...

2. Find a Medical Malpractice Lawyer (and a Medical Expert)

Finding a qualified and experienced lawyer is critical in a medical malpractice case—more so than in a standard personal injury case—for several reasons.

First, medical malpractice cases are a challenge to win, since they tend to involve complex legal and medical issues. Most of these cases turn on your ability to prove elements like the medical standard of care, how your doctor deviated from that standard in treating you, and how your condition was made worse as a result. All of these issues demand a detailed interplay of medical records, expert witnesses, and careful analysis of evidence. You want a lawyer who is accustomed to navigating cases like these.

Second, you need an experienced medical malpractice lawyer in order to get anywhere in settlement discussions with the doctor's insurance company. Medical malpractice insurance companies won't take an unrepresented plaintiff seriously, and might not even extend a fair settlement offer to a plaintiff whose lawyer does not specialize in medical malpractice. The insurer might prefer rolling the dice and going to trial against an inexperienced lawyer.

Third, medical malpractice cases almost always require an expert medical witness or a team of medical experts in order to prove liability. Because many doctors will not agree to testify against a colleague, a good medical malpractice lawyer must have access to a network of health care professionals and academics who are willing to testify as experts in medical malpractice cases.

Fourth, medical malpractice cases are expensive (in part because of the cost of these medical experts). Good medical malpractice lawyers accept this and are prepared to pay these costs, which could reach tens of thousands of dollars. Inexperienced medical malpractice lawyers may not want to front these costs and/or may not be able to afford the costs, and you can lose your case if you're unable to pay the necessary experts.

3. The "Certificate of Merit" and Other Pre-Lawsuit Filing Rules

In many states, the plaintiff's lawyer must submit what is called an "offer of proof" or a "certificate of merit" when (or soon after) filing the lawsuit, and before any pretrial investigation occurs.

Depending on the state's laws, this filing can require a qualified physician to review the plaintiff's medical records and write a sworn opinion declaring that the defendant physician was negligent in providing care to the plaintiff, and that the physician's negligence caused the plaintiff's subsequent injuries.

Other states have different pre-lawsuit requirements, including giving notice to any health care provider a medical malpractice plaintiff plans to sue, and submission of the case to a pre-lawsuit panel who will decide whether the claim has merit and should proceed to court. Most of these procedural hoops are intended to weed out the filing of frivolous lawsuits against health care providers, but in practice they make for a lot more work up front when compared to other kinds of civil lawsuits.

For information that's tailored to your potential medical malpractice case, and details on what's required to file this kind of lawsuit in your state, talk to a medical malpractice lawyer.

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