What is Required to File a Medical Malpractice Lawsuit?

Learn the legal elements you'll need to establish, and the documents you'll need to file with the court.

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Medical malpractice lawsuits can be very complex. They can often be difficult-to-navigate mazes involving expert witnesses and legal issues like "standard of care" and causation. Even for the seasoned medical malpractice lawyer, these cases can present a formidable challenge.

Although medical malpractice laws -- and the requirements for making a claim -- vary from state to state, there are some standard procedural steps that a lot of states have in common. The purpose of this article is to help you understand what you will need to do on order to get a medical malpractice claim “off the ground.”

What is Medical Malpractice?

First things first. In order to amount to malpractice, medical treatment has to fall below an accepted medical standard of care, and the sub-standard treatment must result in harm. In other words, if a health care professional makes a mistake, but the patient is not harmed by it, there is no malpractice. No harm, no foul.

Definition of the "Medical Standard of Care"

A typical definition of the medical standard of care in a medical malpractice case is:

The type and level of care that an ordinary, prudent, health care professional, with the same training and experience, would provide under similar circumstances in the same community

In other words, the critical question is, “Would a similarly-skilled health care professional have provided me with the same treatment under the same, or similar, circumstances?” If the answer is, “no,” and you were harmed as a result of the sub-standard treatment, you may have a medical malpractice case. But while alleging these things is one thing, proving them is another.

How Do You Establish the Standard of Care?

In the vast majority of these cases, you will need an expert witness to testify on your behalf. This expert (a doctor) will need to be trained and experienced in the same field as the health care professional that treated you. The expert will need to establish what the standard of care is and testify as to (1) exactly how the treatment provided to you fell below that standard, and (2) precisely how you were harmed as a result. Learn more about Expert Witnesses and Medical Malpractice Cases.

The "Affidavit of Merit" Requirement in a Medical Malpractice Case

Some states require that, when filing a medical malpractice lawsuit, plaintiffs simultaneously file an affidavit that is signed by an expert, under oath.

Depending on the filing requirements in place in your state, the affidavit might need to go as far as stating what the standard of care was in the particular treatment scenario, and how that standard was breached. Or the affidavit may merely need to say that the expert has reviewed your case and believes that it has merit.

A local attorney who specializes in medical malpractice cases will be able to tell you whether an affidavit of merit is needed in your case, and if so, what the affidavit must cover in order for your case to be accepted by the court.

Learn more about the Affidavit of Merit in a Medical Malpractice Case.

Examples of Medical Malpractice

It may seem obvious, but one thing you need as you contemplate filing a medical malpractice lawsuit is a firm understanding of the kind of health care treatment scenario that could give rise to a viable claim.

The following are some examples of medical malpractice:

  • mistakes monitoring the amount of anesthesia a patient needs
  • errors monitoring the heartbeat of an unborn child during labor
  • failing to account for all sponges and instruments following surgery
  • administering medications that are documented to be fatal allergens
  • allowing bed sores to form from failing to regularly turn incapacitated patients
  • injuring a patient due to improper lifting and/or transporting techniques
  • failing to diagnose a medical condition during an exam

Talk to an Experienced Medical Malpractice Lawyer

You would probably not hire a dermatologist to perform brain surgery. The dermatologist may be a great doctor, but they are unqualified to perform the service you need. Likewise, if you have questions about whether you have a medical malpractice case, you need to speak with a lawyer that specializes in handling these kinds of cases in your state's court system. For in-depth information about what to expect in a medical malpractice lawsuit, check out our Medical Malpractice topic.

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