How to Sue for Medical Malpractice

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: December 28, 2022 References

In order to prove a medical malpractice case, you must demonstrate that you had a patient-doctor relationship, that the doctor was negligent, meaning that they acted below the standard of care for their profession, and that the doctor’s negligence caused you injury. Medical malpractice cases are very complicated cases and require that the injured party hire experts to prove their claim. If you believe you have been injured because of a doctor’s negligence you should speak to an experienced medical malpractice attorney as soon as possible.

Sample Medical Malpractice Complaint

Part 1

Part 1 of 3:

Establishing a Medical Malpractice Claim

1
Show doctor-patient relationship. The first step in establishing a medical malpractice case is to demonstrate that you had an actual relationship with the doctor. You must show that you were the doctor’s patient, not someone who received passing advice at a party. If you saw the doctor at his or her office and the doctor provided you some type of medical care then you can demonstrate the relationship existed.^{[1]
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2
Prove negligence. Negligence for medical malpractice means that the medical care provided to you by your doctor was not the same care that other doctors in the same situation would have provided. All medical specialties have what is called a standard of care, the basic level of care that any competent doctor should provide. If your doctor provided you treatment or diagnostics below the standard of care, then you can show negligence.^{[2]
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- There may be a difference between bad medical care and negligent care. The standard of care does not hold physicians to the highest standard of doctoring but rather a baseline for competency.
- You may have been displeased with the care you received but it may not be negligent if other doctor’s would have reasonably chosen the same course of treatment or diagnosis.
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3
Demonstrate the negligence caused injury. One of the most important points that must be proven in a medical malpractice case is whether the doctor’s negligent conduct actually caused harm. In a case where the patient was healthy and the doctor did something blatantly wrong then it easier to show the harm. It gets more difficult to prove the claim if the patient was already sick and then something went wrong during the procedure or the doctor failed to diagnose the problem.
- The only way to establish negligence and that the negligence caused harm is through the use of expert testimony. An expert in the same medical field as your doctor would establish the standard of care for their profession and offer an opinion as to why the treating doctor’s care was negligent and caused the patient’s injury.^{[3]
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4
Assess potential claim. There are many different categories of medical malpractice claims. By understanding the types of cases, you may be able to more clearly understand whether your potential case is a malpractice claim.
- Misdiagnosis or delayed diagnosis cases involve injuries, including death, that result from a doctor failing to diagnose a disease for some time, which prevented the patient from seeking treatment that could have prevented serious injury or death.
- Certain childbirth injuries are linked to medical malpractice, such as cerebral palsy and seizure disorders. These injuries can result from negligent prenatal care, failure to diagnose a condition that harms the fetus, or negligent delivery of the baby. Often, childbirth injuries are not linked to a failure on the part of the doctor but if you are concerned or have questions you should speak with an attorney.
- Patients can be injured by medication injuries, which may include the doctor prescribing the wrong drug and/or dosage or the pharmacy giving the wrong medication.
- Patients may be injured from anesthesia errors. These types of cases can include a doctor giving the wrong amount of anesthesia, failing to inform the patient of all of the potential side effects or accurately reviewing the patient’s medical history, and/or failing to properly monitor the patient.
- Another category of medical malpractice cases include surgery errors, whereby the surgeon negligently damages an organ, leaves a medical device in the patient, operates on the wrong body part or provides negligent post-operative care.^{[4]
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Part 2

Part 2 of 3:

Proving Injury and Damages

1
Check the statute of limitations. The statute of limitations is a legally defined time by which a person must file a medical malpractice case. Depending on the state, you may have anywhere from a few months to several years to file your case. If you do not file your case within the statute of limitations, the court will dismiss your case.
- In some states the statute of limitations does not begin to run until you have discovered or reasonably should have discovered that you have an injury. This is referred to as the discovery rule.
- Under the discovery rule, if a patient does not have any symptoms for a few months, the statute of limitations would not begin to run at the time of the negligent act, for example, a surgery, but rather when the symptoms started and a reasonable person would seek follow-up care to see what was wrong.^{[5]
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- To view statute of limitations by state, visit: http://www.nolo.com/legal-encyclopedia/state-state-medical-malpractice-statute-limitations.
2
Hire a medical malpractice attorney. Medical malpractice cases are incredibly complicated and often cost a significant amount of money to put forth a strong case. Additionally, these cases often have complex procedural rules that one must follow carefully or else risk their case being dismissed. When looking for an experienced medical malpractice attorney, consider the following:
- Ask family and friends whether they have ever required the services of a malpractice attorney and whether they could make a recommendation.
- Check with local bar associations and review the list of medical malpractice attorneys in your area. You can also check with the bar association to see whether the attorney has any complaints filed against them. You can find state bar association information at https://www.americanbar.org/groups/legal_services/flh-home/.
- Carefully review the attorney’s website to see if they specialize in medical malpractice and look for a list of significant verdicts in their client’s favor.
- Only choose an attorney that is willing to front the costs of the case. This is called a contingent fee agreement, which means that you don’t pay anything unless you win your case. If you win, the attorney is reimbursed for all costs and is paid a percentage of the overall verdict.
- Meet with several attorneys to get a sense of how they interact with their potential clients.
- Ask about their medical malpractice experience.
- Discuss the billing and fee arrangements.
3
Meet with the attorney. Once you have chosen an attorney, if they haven’t already done so, they will have to perform a client intake. This is essentially a detailed interview where the attorney asks you questions about your health, the medical care in question, and your life since the injury. You will be asked very personal questions and it may feel a bit uncomfortable. The attorneys ask these questions so that they can get an idea about your case and the scope of your potential damages.^{[6]
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Examine medical records. During your intake, the attorney will ask you to sign medical release forms for all of your physicians, not just the negligent doctor. In order to properly evaluate your case, the attorney must have a full understanding of any other medical conditions, the events leading up to the negligent care and any and all care you had since sustaining the injury. Your attorney will review this material and retain a doctor to also review the facts of your case.
- An attorney must review the medical records to make sure that a potential case is supported by the medical records.^{[7]
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5
Have your case reviewed by a doctor. In a medical malpractice case, an attorney will hire a medical expert in the same field as the negligent doctor. This expert will review your medical records and any medical literature on your condition. In a malpractice case, a medical expert/doctor must establish the standard of care for the profession and, by reviewing your records, show that the care you received was below that standard and that it caused your injury. Without a doctor attesting to this, a malpractice case will not move forward. ^{[8]
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- Keep in mind, doctors charge a fee for their service so your attorney may (or may not) charge you to pay for their expertise.
6
Assess damages. Attorneys will also request your salary information, employment history, medical bills and other financial documents to assess your damages. These damages may include:
- The cost of past and future medical care;
- Loss of income and/or the loss of your career;
- Pain and suffering;
- The cost of any psychological care; and
- A claim by a spouse for the loss of care, companionship or other damages that they suffered as a result of their spouse’s injury or death.

Part 3

Part 3 of 3:

Filing a Medical Malpractice Lawsuit

1
File a Certificate of Merit. Many states require that a patient file a “certificate of merit,” which is a sworn statement by a physician that states that they reviewed your medical records and found that your doctor acted below the standard of care and that this caused your injuries. Your attorney will file this document for you.^{[9]
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2
File a Complaint. A Complaint is the document that begins your lawsuit. It specifies why your case is being filed in a particular court, the parties in the lawsuit, and your legal claim. You can review a sample medical malpractice complaint above.
- The Complaint puts the doctor, now the defendant, on notice that they are being sued and that they must file a legal Answer.
- The Complaint should be typed, double-spaced and each paragraph should be numbered.
- It should include a brief introduction that explains why the case is being filed in a particular court.
- It will include a list of facts relevant to proving negligence and damages.
- It will include all of your legal claims and your demand for damages.
- It will request a jury trial, if you want a jury to hear your case.
- The Complaint will be filed with the court and a copy will be provided to the defendant doctor.^{[10]
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- Your attorney will also file a “Certificate of Service,” which provides proof to the court that you provided the defendant with a copy of the Complaint in a legally allowable way.^{[11]
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3
Engage in discovery. Discovery is the fact-finding portion of the case. Both parties send written questions, called interrogatories, and requests for documents. Both parties must respond to discovery requests.
- Your attorney will receive the discovery requests and will most likely meet with you to discuss your answers.
- Your attorney will include legal objections but in the end you must answer the questions truthfully.^{[12]
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- Both attorneys will take depositions, which is where they ask questions of potential witnesses under oath and in front of a court reporter. The purpose of the deposition is to gather additional facts and to find out what a witness will say at trial. If you are the injured party, you can expect to be deposed.
- If your injuries are in dispute, the defendant may request that you get an “independent medical exam.” Your attorney will most likely accompany you to this doctor’s visit, where you will be given a basic examination and asked questions about your injury and any changes it caused in your life.^{[13]
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Begin settlement negotiations. You can engage in settlement negotiations at any time before the jury comes back with a verdict. Most cases go through some type of settlement negotiation after discovery is ended but before trial begins. At that point in the case, both parties can more clearly assess the strengths and weaknesses of their case and be able to engage in a meaningful settlement discussion.
- Many cases settle at this time because it is before the added expense of trial for both parties.
- Parties, through their attorneys, can engage in settlement negotiations directly.
- In bigger cases, parties often hire a mediator to facilitate settlement discussion. The mediator is a neutral person, usually a retired judge or attorney. The mediator discusses, with both sides, the strengths and weaknesses of their cases and helps the parties come to an agreement.^{[14]
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Go to trial. If you are unable to reach a settlement agreement, the case moves to trial. During trial, both sides will make opening statements, present and cross-examine witnesses and give closing arguments.
- During trial, the jury is listening to all of the witnesses and gathering facts to determine whether the plaintiff proved his or her case.
- The judge will explain the law to the jury and then the jury makes a decision as to whether, by a preponderance of the evidence, the plaintiff showed that he or she was injured by the doctor’s negligence, and this negligence caused the plaintiff’s damages.^{[15]
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Await the outcome. Once the jury makes its decision, the verdict will be announced in court. The jury will also announce the amount of damages that it awarded, if any.

Warnings

You have a limited amount of time to sue a healthcare provider for medical malpractice. Generally, two years from the date you were injured, the date you discovered the injury, or the date upon which you reasonably should have discovered the injury. Check your state’s statutes or consult with an attorney to determine how long you have to file suit in your state.

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