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How to File Lawsuits Against Doctors: Key Insights and Considerations

Dec 07, 2022

Filing a lawsuit against a doctor may seem overwhelming. You know that you or someone you love has been injured because of a doctor's error, but how do you even begin proving it? Read on to find out what all lawsuits against doctors need.

How to File Lawsuits Against Doctors: Key Insights and Considerations

What Do You Need to File a Lawsuit Against a Doctor?

Lawsuits against doctors are also called medical malpractice suits. Every state has its own rules about medical malpractice, but the same basic requirements are present in most states' laws. In most states, you have to prove that you were hurt because your doctor failed to meet the standard of care. 

Primary Care Physician Relationship

For you to sue a physician, that physician must have owed you a duty of care. That means you cannot just sue any physician. The only physicians who owe you a duty of care are your own physicians. That means you entered into a physician-patient relationship.

In many cases, entering into the relationship is clear because you signed a consent form for treatment or you verbally consented to an examination, and the physician agreed to treat you by beginning the exam. In other cases, this may be less clear, such as in emergency departments when the patient cannot sign a consent form due to incapacity or a lack of time, or when the physician consults another physician who never actually saw the patient. Each state has its own standards for when a physician-patient relationship exists, so you should seek legal advice to determine whether a relationship existed in your case.

Avoidable Injury

Another key element you must be able to prove in a medical malpractice case is that you suffered an avoidable injury. In the vast majority of cases, a patient seeking medical care is already injured or suffering from a medical condition. Modern medicine is quite advanced, but it has not reached the point of being able to cure or resolve every medical condition. The fact that you continue to face a disability or medical condition even after your treatment is not enough. Instead, you have to be able to prove that you could have had a better outcome — your injury was avoidable.

Failure to Provide Standard of Care

The major hurdle in most medical malpractice cases is proving that the healthcare providers failed to provide the standard of care. In most states, the standard of care is the level of care that a reasonable healthcare provider of the same specialty in the same local area would have provided. This does not mean that a doctor must provide the very best care possible or treatments on the cutting edge of medical research, even if that care would have led to a better outcome. The following are a few examples of a failure to meet the standard of care, but there are many others:

Failure to provide generally recommended preventive care, such as screenings, that would have uncovered a condition

Failure to follow a widely accepted diagnosis algorithm, leading to a misdiagnosis 

Prescription of a medication that most physicians would not prescribe for the patient's condition

To prove the doctor failed to provide the standard of care, you need an expert witness — usually another doctor — to testify as to what the applicable standard of care is and explain what your doctor did that did not meet that standard. In some states, you cannot even file a medical malpractice complaint (the legal document that begins a lawsuit) unless you include a statement from another doctor attesting that the doctor you are suing did not meet the standard of care. 

Medical Records

Medical records are essential to filing malpractice lawsuits against doctors. Doctors are required to document their exams and medical care, and medical records must be made available to patients. Once you get your medical records, however, you will need someone to help you interpret them. 

Considerations for Legal Action

Before filing legal action, you should consider a number of practical issues, the foremost of which is cost. In addition to cost, however, are the time that a lawsuit may take and the likelihood of a desirable outcome. 

Cost

Too often, the primary concern about filing malpractice lawsuits against doctors is the cost. Lawsuits are expensive, and medical malpractice suits are especially so. At the minimum, you will need to pay filing fees to the court just to file your suit. Except in very rare instances, you will need to hire at least one expert witness to testify about the standard of care. You will also likely need to pay for depositions and copies of medical records and other document fees. If the expert witness has to testify at trial, you may have to pay extra.

And then there are attorney fees as well. Most medical malpractice attorneys charge fees on a contingency basis, meaning that you pay only if you win or reach a settlement, so at least you do not have to pay up front or worry about being stuck with a bill but no compensation. The amount you pay in attorney fees in the end, however, is often one-third of whatever amount you receive. 

Finally, you have to think about your insurance company or Medicare costs. If you win, your insurance company will require you to pay back any medical bills that it covered and for which you received an award or settlement. Same for Medicare. 

Before deciding to file a medical malpractice suit, you need to carefully evaluate how much your case may be worth and then deduct the costs to determine whether filing suit makes financial sense.

Time and Expectations

Medical malpractice cases can take years before they are resolved. Gathering evidence and building a case takes time, especially because so much is required from expert witnesses in most medical malpractice cases. Once a suit has been filed, then all parties involved have to exchange documents as well as arrange depositions for witnesses. Depending on the court and jurisdiction, you may have to go through mandatory mediation sessions to try to reach a settlement. And there are often significant briefings on pretrial issues.

During that time, you may not be able to work or pay your bills, or you may be facing unpaid medical bills going into collection. Even if you are not financially at risk, protracted litigation can be mentally draining as well as time-consuming thanks to conferences, depositions, and other legal proceedings you may need to attend. 

You also may need to adjust your expectations for what your case is worth. Many people assume that a medical malpractice suit means big awards, but that is not always true. The circumstances may lead to a smaller-dollar-value case. If, however, you or someone you love has suffered a significant injury due to medical malpractice, such as a birth injury, you could receive significant compensation.

Why Should You Hire a Medical Malpractice Lawyer?

A medical malpractice attorney can help evaluate your case, including the following:

  • Can you gather enough evidence to prove your case?
  • What is your case worth?
  • How much will it cost to prove your case?
  • What is the likelihood of success? 

A medical malpractice lawyer also knows how to find lawsuits against doctors to generate a malpractice report. If the doctor has a history of malpractice, patient complaints, or disciplinary actions before the state medical board, then you may be more likely to file suit than if the doctor has a clean record. 

Medical malpractice suits often have a short time limit to file. Contact a medical malpractice attorney at The Spence Law Firm to evaluate your case today.

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