Medical Malpractice FAQ

Have questions about filing a medical malpractice claim? Curious to know your rights in the situation? We put together this simple FAQ with answers to some of the most commonly asked questions about medical malpractice.

What Is Medical Malpractice?

Medical malpractice occurs when a patient is injured by the negligent or inadequate care of his or her attending physician. The standard of care is determined by the course of action that an average medical professional would take in a similar situation. It is important to emphasize that not every error in treatment or deviation from the medically standard treatment qualifies as medical malpractice.

For further explanation and examples, visit our Medical Malpractice page.

How to Prove Medical Malpractice?

There are four basic requirements that must be proven in a medical malpractice suit. The plaintiff must prove that:

  • A professional doctor-patient relationship existed in which the doctor was hired to treat the plaintiff at the time of the mistake.
  • The doctor was negligent and provided inadequate care to the plaintiff.
  • An injury was caused by the doctor’s medical negligence.
  • The injury resulted in damages. These damages can include both economic losses like additional medical bills and noneconomic losses such as emotional distress or physical pain.

In the majority of medical malpractice lawsuits, a qualified healthcare professional will provide medical expert testimony to review both the treatment provided by the attending medical provider and determine the connection, if any, between the care provided and the plaintiff’s injury.

When filing a medical malpractice lawsuit, the plaintiff must also make a claim before the statute of limitations ends. The exact time limit will vary by state.

If medical malpractice proves fatal for a patient, a wrongful death lawsuit can be filed by the patient’s family on behalf of their loved one.

Who Can Be Sued in a Medical Malpractice Lawsuit?

A medical malpractice lawsuit can name anyone who had a duty of care to the plaintiff at the time of the injury. A duty of care refers to the obligation of healthcare professionals to care for a patient and avoid harm while doing so. While doctors are typically thought to have a duty of care to their patients, they are not the only health care providers with this responsibility. Other responsible parties to consider:

  • A primary care physician
  • An attending nurse or support staff
  • A medical specialist like an oncologist or dermatologist
  • A medical practice
  • A hospital or clinic

For example, when parents file a medical malpractice claim on behalf of their child who suffered a birth injury, they might name their OB/GYN, midwife, doula, or the support staff that was responsible for their child’s care at the time of the birth.

Identifying the individuals or entities that were negligent in their duty of care can help plaintiffs and their legal teams determine an appropriate strategy when filing a medical malpractice claim.

How Long Can a Medical Malpractice Case Take?

Building a case for a medical malpractice lawsuit can be complex and time consuming for both parties. The time spent in legal discovery and settlement negotiations can span several years. A trial by jury can also add length to any litigation process, however, very few medical malpractice lawsuits go to trial. As with other types of personal injury suits, most medical malpractice cases are settled out of court.

What Is the Average Settlement for Medical Malpractice Lawsuits?

Settlements vary based on the types of damages involved, but it is not uncommon to see medical malpractice settlement amounts between $300,000 and $1 million. In medical malpractice suits, compensatory damages will be awarded. Very rarely are punitive damages involved unless the actions of the defendant are deemed monstrous.

A seasoned lawyer can help a victim of medical malpractice estimate the damages by reviewing the economic costs accrued following the injury and evaluating the non-economic costs. Take for example a case based around a cancer misdiagnosis. If an oncologist fails to diagnose a patient’s cancer, the cancer will inevitably worsen without medical treatment. Once diagnosed, that patient may face more costly medical procedures, a loss of income during treatment, and psychological damages that accompany a delayed diagnosis.

By determining the expected damages, a knowledgeable lawyer can help a potential plaintiff decide if the case is worth trying financially.

What Are The Chances of Winning a Medical Malpractice Suit?

Research has shown a positive correlation between the odds of winning a medical malpractice lawsuit and the strength of the evidence presented. The stronger the evidence, the more likely a plaintiff is to win the case. Stronger evidence has also been linked to higher payout amounts on average.

Finding an experienced lawyer with a proven medical malpractice track record can be a huge asset when it comes to gathering evidence, pouring over medical records and compiling a strong case. Timeliness is another advantage when building a strong legal case. The more time that passes between the incident and the legal discovery time, the harder it can be to collect evidence and accurate witness statements. This is why the statute of limitations in many states does not exceed three years.

Can I File a Medical Malpractice Claim Myself?

Yes – you have the right to file a medical malpractice claim yourself. However, it is worth noting that filing a medical malpractice suit can be incredibly time intensive and expensive.

The American Bar Association estimates the cost of pursuing a medical malpractice lawsuit between $50,000 to $500,000. Most medical malpractice lawyers use a contingency fee system in which they cover the litigation costs and are repaid if and when a settlement is determined. This can significantly reduce financial costs for the plaintiff.

Research has also shown that without legal representation, a plaintiff is at a significant disadvantage. One study estimated that a plaintiff without an attorney has a .01% chance of winning a payout in a medical malpractice lawsuit.

Working with a medical malpractice lawyer can provide a plaintiff with the necessary legal experience to build a solid case and negotiate with the defendant’s attorney.

How to Find the Best Medical Malpractice Attorney?

Trying a medical malpractice case requires an extraordinary amount of time, money, and resources. Therefore, it is often in the plaintiff’s best interest to find a seasoned lawyer or law firm with medical malpractice experience to try the case on the plaintiff’s behalf.

When looking for a medical malpractice attorney, consider their experience, education, and track record.

  • Is the attorney a licensed professional?
  • Does the lawyer have a medical background or extensive education in medical malpractice cases?
  • Does the attorney or law firm have a winning track record for medical malpractice suits?

Most medical malpractice lawyers will provide a free case evaluation to determine if someone has a viable case. Talk to a lawyer today to determine if your case is strong enough to pursue.