How Do I File a Medical Malpractice Claim?

Many states have placed procedural hurdles in the paths of medical malpractice plaintiffs, to ensure their claims are valid.

If you're thinking about bringing a medical malpractice case against a doctor or other health care provider, you may be required to jump through certain procedural hoops that are unique to these kinds of claims. These requirements—from sworn testimony by a qualified medical expert to evaluation of your claim by a pre-lawsuit panel—vary from state to state. But those aren't the only considerations to keep in mind if you think you have a valid medical malpractice case.

Talk to a Medical Malpractice Attorney ASAP

There are certain kinds of injury-related cases that can be handled without professional assistance, but a medical malpractice claim isn't one of them.

First off, you need to make sure that your case is filed before the statute of limitations deadline has passed. Some jurisdictions have more lenient statutes that won't start the "clock" until the date when the medical malpractice injury was discovered, while other states are stricter, starting the clock as soon as the malpractice is committed, regardless of when you learn that you were harmed. An experienced medical malpractice attorney will be familiar with the lawsuit-filing deadline in your state, and will do everything possible to comply with it.

Second, and depending on where your case will be filed, compliance with pre-lawsuit requirements (medical expert affidavits, review boards, notices of intent to file sui) will determine whether or not your claim will be allowed to proceed.

An attorney who routinely handles medical malpractice cases will have the experience, contacts and procedural know-how to ensure your case is positioned for the best chance of succees. Learn how to find the right medical malpractice lawyer for you and your case.

Obtain Copies of Your Medical Records

Medical records are usually the best evidence in a medical malpractice case. Due to privacy laws, you will have to sign a release allowing your attorneys (as well as any defendants’ attorneys) to obtain copies of your medical records. You can get a head start on this process by requesting a copy of your records as soon as you believe you may have a case.

Delivering a copy of your records to your attorneys as soon as possible will enable them to start analyzing the case in-depth, and will also allow them to solicit medical opinions from doctors, nurses or other medical professionals who may serve as medical expert witnesses in your case. It is entirely possible, after a thorough review of your records, that an attorney will advise against filing a lawsuit, or opine that your damages may not be the result of a health care provider's medical negligence. The sooner professionals can review your records, the sooner you'll be able to determine if your lawsuit has a good chance of success.

Notify Health Care Providers and Insurers

Whether formally or informally, it's often helpful to provide notice of a potential lawsuit to health care providers and their insurance companies. In some states, this is a prerequisite to taking the matter to court, but in all cases, this kind of notice will trigger insurance coverage and internal review, and you may find that you can reach an acceptable settlement prior to even filing suit. Again, the assistance of a lawyer is invaluable because your attorney will act as a professional buffer between you and claims professionals who may or may not decide to bully you or take a hard line on your case. While this can be a mere negotiating tactic, it does not make it any less unpleasant. When it comes down to it, having an attorney provide notice of your intent to file suit is the best way to handle the situation.

Comply with Pre-Suit Requirements

As mentioned above, many states have formalized pre-filing requirements for medical malpractice cases. Another outgrowth of the tort reform movement, pre-suit requirements are intended to streamline litigation, encourage settlement and help to weed out frivolous cases. As such, most pre-suit rules require some kind of expert support, either in the form of an affidavit of merit (or similarly-named document) that opines on the appropriate medical standard of care that was allegedly violated, and the injuries that resulted.

Failure to comply with pre-suit requirements can result in dismissal of your case, although you'll usually get a chance to come into compliance before you lose the right to a legal remedy for good.

Filing the Medical Malpractice Complaint

The final step in starting a medical malpractice case is the actual drafting and filing of a complaint in civil court. The complaint is a formal recitation of the allegations against the defendant doctors and/or hospital. Once the complaint is filed, the lawsuit begins in earnest. Check out this timeline of a typical medical malpractice lawsuit to learn more.

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