Medical malpractice occurs when a patient is harmed by a medical professional. While the laws for filing a medical malpractice lawsuit can vary from state to state, there are some general guidelines that apply to most cases.
Requirements to File a Medical Malpractice Lawsuit
The first thing that needs to be shown in order to claim medical malpractice is the relationship between the medical professional and the patient. A physician/patient relationship exists when you are seeing a doctor or medical professional that has agreed to treat you.
In order to have a valid medical malpractice claim you would also need to show that the medical professional was negligent. This means that the doctor would have not been reasonably careful or skillful and that a competent doctor under the same situation would not have caused the same harm.
You would also need to show that the doctor’s negligence is what caused the injury. It is the patient’s responsibility to prove that “more likely than not” the doctor’s negligence was the direct cause of the injury. Often times it is best to have a medical expert testify to help prove this point.
The final thing that needs to be shown is that the injury led to specific damages. If the doctor was negligent but the patient did not suffer any harm then the claim will not hold up. In order to have a valid claim there must be at least one of the following: additional medical bills, loss of work or earning capacity, mental anguish, or physical pain.
Types of Medical Malpractice Claims
Most medical malpractice claims fall into one of the following categories:
Improper treatment – Occurs when the doctor treats the patient in a way that no other competent doctor would.
Failure to warn of known risks – Occurs when a patient is injured by a procedure in a way that the doctor had knowledge of and did not warn could happen.
Failure to diagnose – Occurs when a different diagnosis by the doctor would have led to a better outcome for the patient than the one achieved.
Rules for Filing a Medical Malpractice Claim
While many states have special rules and procedures for filing a medical malpractice claim, you will want to follow these guidelines as well as any advised by your attorney.
- File the claim within the statute of limitations. This can vary from state to state, but the window to file for medical malpractice is usually small.
- You may be required to first submit the claim to a medical malpractice review panel. This panel will help determine if malpractice has occurred.
- You may be required to provide special notice of the claim to the doctor before filing anything.
- Expert witnesses may be required at trial so it is a good idea for your attorney to line up the expert witnesses early on.
- Some states place limits on damages that can be awarded. Your attorney will be able to advise you if there are any limitations in your state and what they are.
Filing a medical malpractice claim can be complicated. It is best to find an attorney that you can trust to help guide you through this difficult process. The law can vary greatly between states; an attorney will be able to advise you of all requirements and restrictions in your area in order to file a valid claim.