How Do I File a Medical Malpractice Claim?

To make a medical malpractice claim, you'll need to get a lawyer and probably file a lawsuit - and many states have additional procedural hoops for plaintiffs.

If you're thinking about filing a medical malpractice claim, you may be required to jump through several procedural hoops along the way. Jurisdictional requirements, expert requirements and pre-suit filings can be varied and complex. Read on to learn about the steps you may need to take when filing a medical malpractice lawsuit.

Consult an Attorney as Soon as Possible

There are many types of cases that can be handled without professional assistance, but medical malpractice cases are not one. If you think you’ve been injured because of medical malpractice, seek out legal counsel as soon as possible. There are several reasons why.

First and foremost, you need to make sure that your case is filed before the statute of limitations has expired. Some jurisdictions have more lenient statutes that are calculated from the time an injury is discovered. Others are stricter, and the clock starts ticking as soon as the malpractice is committed, regardless of when you discover you are injured. You can find the law in your state here, but an attorney is your best resource when trying to ensure your case is filed in a timely manner.

Depending on where your case will be filed, there may be pre-suit requirements that need to be met before your case is filed. Medical expert affidavits, review boards, notices of intent to file suit -- all of these have potential ramifications regarding whether or not your case may proceed. If you fail to meet any procedural requirements your jurisdiction may have, your case could be summarily dismissed.

An attorney that routinely handles medical malpractice cases will have the experience, contacts and procedural know-how to ensure your case is filed in a timely and professional manner. Don’t risk dismissal by trying to handle a medical malpractice case on your own, find a lawyer that knows the ropes.

Obtain Copies of Your Medical Records

Medical records are the best evidence in any medical malpractice case. Their contents can make or break a 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 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 analyze the case in-depth, and will also allow them to solicit medical opinions from doctors, nurses or other medical professionals who may serve as expert witnesses in your case. It is entirely possible, after a thorough review of your records, that an attorney will advise you not to file a case, or that your damages may not be related to malpractice. The more information the better, and the sooner professionals can review your records, the sooner you will be able to determine if your lawsuit has a good chance of success.

Notify Appropriate Insurance Companies and/or Facilities

Whether formally or informally, it is often helpful to provide notice of a potential suit to insurance companies or hospitals. In some cases, such notice will trigger insurance coverage an 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 any Pre-Suit Requirements

As mentioned above, many states have formalized notice requirements for medical malpractice cases. Another outgrowth of the tort reform movement, pre-suit notice requirements are intended to streamline litigation, encourage settlement and help to weed out frivolous cases. As such, most pre-suit notification laws require some kind of expert support, either in the form of an affidavit or some other sworn statement that opines on the appropriate medical standard of care that was allegedly violated, and the injuries caused.

The theory is that if a doctor cannot support your case from the outset, chances of success are virtually non-existent should the suit be allowed to proceed. Effectively, states are seeking to reduce the number of medical malpractice claims filed, at least the frivolous ones.

Failure to comply with pre-suit notice requirements can be disastrous for your case. Most states with pre-suit notice requirements have provisions in place for the dismissal of cases on procedural grounds in the event you don’t give defendants proper notice.

File the Medical Malpractice Complaint

The final step in filing a medical malpractice case is the actual drafting and filing of a complaint. 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.

The steps involved in filing a medical malpractice case can be complicated and daunting. Retaining the services of an experienced, professional attorney should be your first step in any medical malpractice action.

To learn more about how the lawsuit typically proceeds, see this timeline overview.

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