How to File a Medical Malpractice Lawsuit—and Whether It Makes Sense

So, you think you have a medical malpractice case. You've done your homework, researching the elements of a claim, including the all-important standard of care. You believe the doctor's carelessness caused you to be injured. All systems appear to be go for a medical malpractice lawsuit.

Still, you're looking for answers to a couple of lingering questions. First, does it really make sense to sue? How do you know if it's worth the time, expense, and hassle to go through a lawsuit? Second, if it does make sense, what are the steps you need to follow to file your case in court?

If those questions or something like them brought you here, you're in the right place. But before we answer them, let's begin with a third, equally important question: What does it mean if you can't find a lawyer who will take your medical malpractice case?

Why Won't a Lawyer Take Your Malpractice Case?

You've been to three or four lawyers, shopping your medical malpractice case. No takers. Why won't anyone take your case? There are at least two likely reasons: You're asking the wrong lawyers, or you don't have a case.

You're Asking the Wrong Lawyers

Medical malpractice cases are among the most difficult and expensive of all personal injury claims. Lawyers who don't regularly handle them usually won't touch them with a ten-foot pole. Special rules, designed to protect doctors and their insurance companies from financial loss, are everywhere. It's easy to make a mistake—one that could cost the client their right to recover damages and reward an unsuspecting lawyer with a legal malpractice claim.

You Don't Have a Case

If you've spoken to several lawyers and none of them will represent you, the simplest explanation is probably the correct one: You don't have a case. Or if you do, it's not a case worth pursuing. This can be a bitter pill to swallow, especially if your medical care ended in a poor outcome.

The simple truth is that bad outcomes sometimes happen, even with the best of care. The fact that the result didn't meet your expectations doesn't mean your care was substandard.

Does It Really Make Sense to Sue?

The decision to pursue a medical malpractice claim usually involves more than just the formal elements of duty, breach, causation, and damage. Experienced malpractice lawyers know they also need to consider several "soft factors," issues that can be hard to assess, but that might be critical to the success or failure of a claim. They include:

• the likelihood that any settlement or verdict will cover the costs of the case with enough left over to pay you
• the emotional costs of a malpractice claim, and
• whether you can overcome the pro-health care provider bias most people—including lots of jurors—have.

Will the Settlement or Verdict Be Enough?

In medical malpractice cases, as in so many things, the bottom line is the bottom line. It makes no sense to pour money and time into a case that's not likely to get you much of a payout. Here's how to get a rough idea of what that payout might look like.

What Drives Malpractice Claim Value?

Any assessment of claim value starts with liability, meaning the health care provider's fault. Without a provable failure to meet the applicable standard of care, your malpractice claim never gets off the ground. From a case value perspective, the provider's blameworthiness is certainly a factor to be considered. But it's difficult to put a number on fault.

If liability looks provable, the single most important case valuation factor is your injuries and resulting damages. Serious and permanent injuries lead to higher damages which, in turn, yield bigger settlements and verdicts. Minor injuries, or injuries that quickly heal with no residual effects, mean smaller payouts.

Fees and Expenses in a Malpractice Case

Ideally, a malpractice settlement or verdict will pay your attorney's fees and case expenses, with enough left over to make it worth your time and trouble.

Attorney's fees. If you have a worthwhile case, you'll find an attorney who's willing to take it for a contingency fee. You won't have to pay the lawyer up front or by the hour. Instead, at the end of the case, the lawyer will take between 25% and 40% of your settlement or verdict after case expenses.

Case expenses. Medical malpractice cases are very expensive, owing mostly to the need for expert witnesses. Your lawyer, if you have one, will probably agree to advance these expenses and deduct them from your recovery.

How expensive might your case be? Let's start with experts. For every expert witness your lawyer calls to testify at trial, expect of bill of $10,000 to $20,000. In a routine malpractice case, you're likely to need between two and four experts.

Assume your lawyer calls three experts at trial. At $15,000 each you're out $45,000, not counting filing fees, travel, meals, and lodging costs, copies, postage, reconstruction videos, and much more. By the end of the trial, don't be surprised if your case expenses approach or exceed $100,000.

Estimating the Value of Your Case

To decide whether they'll take your case, an attorney will estimate its value. Say your past and future medical expenses are $150,000. Your lost income totals $400,000.

You're also entitled to compensation for what the law calls "noneconomic" damages, for injuries like pain and suffering, loss of enjoyment of life, emotional distress, and disability. To estimate those damages, the attorney will apply a multiplier of one to five times your medical bills. Let's assume the attorney uses a multiplier of three ($150,000 x 3 = $450,000).

The calculation of your total damages goes like this:

*If yours is a state that caps malpractice damages, this number might have to be reduced.

Assuming a 33% contingency fee and case expenses of $100,000, your net recovery comes to $1,000,000 - $100,000 = $900,000 - ($900,000 x 33% = $297,000) = $603,000. A more realistic estimate is probably a range of plus or minus 25%, or $452,250 to $753,750.

Emotional Costs of a Malpractice Claim

Once you file a malpractice lawsuit, you'll have to re-live the events giving rise to your claim over and over again. For example, early on in the case you'll have to sit for a deposition, a day-long ordeal where you'll be questioned by the defense lawyer about:

• your medical history
• treatments with the doctor you're suing
• your injuries
• how those injuries were treated
• any permanent disabilities you claim to have suffered, and
• your pain and suffering, emotional distress, relationships, loss of enjoyment of life, and more.

When weighing the costs of a malpractice case, you should factor in the emotional costs of a long, stressful, and anxiety-producing lawsuit. There's nothing wrong with deciding that a potential but uncertain payoff just isn't worth it.

Overcoming Pro-Health Care Provider Bias

Doctors, nurses, and other health care providers generally are held in high esteem, and rightfully so. The overwhelming majority are dedicated, caring, and conscientious professionals. Quite often, though, that esteem carries over to the courtroom. Whether consciously or not, lots of jurors (and judges) have a bias in favor of health care providers.

To level the playing field, your lawyer will work hard to get biased jurors off the case during jury selection. Defense lawyers will try to "rehabilitate" them, asking them to agree that they'll be fair to both sides and deliver a verdict based solely on the evidence. The judge decides whether a potential juror gets "stricken" (sent home) or remains on the case.

How to File a Malpractice Case in Court

Can you file your own medical malpractice lawsuit? Yes. Should you? Probably not.

Remember what we said above: If you can't find a malpractice lawyer to take your case, it likely means you don't have a case that's worth pursuing. Experienced malpractice lawyers find it hard to win in court. The chances you'll succeed on your own are vanishingly small.

If you decide to move forward without counsel, here are the main steps involved in filing your lawsuit in court.

Learn Your State's Medical Malpractice Laws

Most states have statutes governing medical malpractice cases. These laws might address the statute of limitations (the deadline to file your lawsuit in court), special filing requirements, rules regarding expert witnesses, damage caps, and more. Be sure you know what the law requires before you file your case in court.

Become Familiar With the Court Rules

Before you file, you should have at least a general familiarity with the court rules that will control your lawsuit. In particular, take a look at your state's rules of civil procedure and rules of evidence. You might be able to find your state's rules on the state's court website.

At best, these rules can be difficult to understand and follow. The time to learn them isn't while you're knee-deep in a factually and legally complicated medical malpractice suit.

Collect Your Medical Records and Bills and Other Documentation

During the lawsuit, you'll have to give the defense copies of documents relevant to the case. You should have these records on hand, indexed and organized before you file. They'll include:

• your medical records, from at least 10 to 15 years before the malpractice up to the present
• medical bills for care you received during and after the malpractice, and
• employment records documenting your job title and duties and showing time away from work and lost income.

Line Up Expert Witnesses

An expert witness is a person who's qualified, by education, training, and experience, to offer opinions about matters that are beyond the knowledge of most judges and jurors. It's up the judge to decide whether experts are qualified to testify and, if so, on what subjects.

Before you file, you should have a solid liability and causation medical expert lined up. Without this expert, your lawsuit is over before you file it. Unfortunately, finding an expert witness is likely to be a challenge. You probably won't find local physicians—including your current treating doctors—willing to testify against the defendant.

Check your state law to find out what kind of education and training your expert will need to be allowed to testify. As a rule, your expert must match the defendant credential for credential. If the defendant is a board certified neurologist with specialized fellowship training in spinal reconstruction surgery who practices at a major academic medical center, your expert will need to have the same credentials (or credentials very close to or exceeding those) to be qualified.

In many states, you'll need a written opinion from your liability and causation expert before you can file your lawsuit (see below). You might need to file that opinion together with your lawsuit papers. Your state law will explain.

Other Prefiling Requirements

In a few states, before you can file a malpractice case you must notify the defendant (in writing) that you plan to sue. In other states, you might need to submit your case to a medical review panel before filing. The panel reviews the case and renders an opinion on the merits of the parties' claims and defenses. If the panel finds your case lacks sufficient merit but you file it anyway and lose, there might be financial consequences. Check your state law.

Prepare and File Your Lawsuit

The final step is to prepare and file your lawsuit. In most states, the document that starts a lawsuit is called a complaint. In a few places, it's known as a petition. The contents of your complaint will vary from state to state, so as always, the starting point should be your state's malpractice statutes and rules of civil procedure.

What's in a complaint? In general, your complaint should be typed or word processed and should state, in separately numbered paragraphs:

• the names and addresses of all parties to the case
• if your state law has prefiling requirements, that you've complied with them
• the facts regarding your medical care and treatment with the defendant
• the duty of care the defendant owed you (according to your expert), and how the defendant breached that duty
• how the defendant's acts or omissions caused you injuries
• the specific injuries you claim to have suffered, and how those injuries were (and will in the future be) treated, and
• the relief—usually money damages—you want the court to award you.

The certificate or affidavit of merit. In many states, your complaint must be accompanied by a certificate or affidavit of merit from your liability and causation expert. Quite often, the certificate or affidavit must have attached to it a copy of your expert's written report. Your state law will provide the specific requirements. File your case without the necessary certificate or affidavit and the court will dismiss it.

File before the statute of limitations expires. Don't forget the lawsuit-filing deadline, called the statute of limitations. Miss it and, absent an extension, your malpractice case is legally dead. You've lost the right to collect damages for your injuries.

Filing and Service

In most cases, you file your complaint with the clerk of the state's main trial court. Unless the court waives it, you must pay the filing fee—probably between $150 and $300. You'll also need a summons for each defendant, a document commanding them to appear in court and defend the case.

Once you've filed the necessary documents and paid the filing fee, you must serve each defendant—formally deliver the lawsuit papers to them—within the time period specified by state law. That period will probably be between 30 and 90 days after filing. Quite often, the sheriff will serve documents (for a fee). You also can arrange for a private process server, though that'll be more expensive.

If you don't timely serve a defendant, they can ask the court to be dismissed from the case.

Get Help Making Your Decision

It might be a good idea to buy an hour or two of a local malpractice lawyer's time to have a candid discussion about the pitfalls of going it alone and the odds that you'll end up with a settlement or verdict that meets your expectations. A few hundred dollars spent now might save you thousands down the road.

Here's how to find a lawyer who can provide the answers you need.