How to Sue for Medical Malpractice
December 6, 2022
In a recent study, about 10 percent of doctors admitted having made a major medical error in the prior three months. Malpractice can range from wrong diagnoses or treatment delays to drug dosage miscalculations or giving the wrong drug to anesthesia mistakes or surgical errors. These errors may cause a new injury, make an existing illness worse or harder to treat, or even reduce your odds of survival. Some consequences of medical malpractice are treatable, but some cause permanent injuries or death.
You may have legal options if you or a loved one received negligent care from a healthcare provider. Doctors, hospitals, and other medical professionals may be liable to provide you compensation if they committed malpractice. Consult the experienced medical malpractice attorneys at Gruel Mills today if you think you may have a malpractice claim.
Who Can You Sue for Medical Malpractice?
Any licensed healthcare practitioner or facility can be sued for malpractice. A doctor, nurse, radiologist, pharmacist, or any other medical practitioner who must be licensed can be individually liable for their negligent actions.
When an individual is negligent, their employer healthcare facility can be automatically held liable for the negligence of that employee in the course of their job. In rare cases, a hospital may be liable for the actions of a doctor who is not its employee but who has privileges at that facility. Healthcare facilities may also be liable for their own negligence. For example, a hospital may be liable for negligent policies that lead to injury or illness or negligence in its hiring practices that allows unqualified staff to cause harm to patients.
How to Sue a Doctor for Malpractice
Medical malpractice cases are complex for two main reasons: the human body and practice of medicine are complicated, and there are many laws governing these types of claims. Not every complication or bad result from medical care is the result of negligence or malpractice. For example, a doctor may have made a decision based on the knowledge and resources available at the time, or a bad surgery outcome may be simply an unavoidable risk of that procedure. However, doctors are human and mistakes are made every day. When a medical professional does not act within the standard of care – what a reasonable person in their shoes would have done – you may have a claim for malpractice.
Talk With the Medical Professional or Facility
If you believe a doctor, nurse, or other medical professional has harmed you due to malpractice, your first priority is minimizing the impact of the malpractice and recovery. Ask the doctor what went wrong and how the mistake can be fixed. If your doctor does not act promptly to fix the mistake, seek out another doctor. Also notify the facility. This should trigger an investigation into your care that could preserve valuable evidence.
Review the Time Limits for Filing a Claim
Each state has a “statute of limitations,” or a time limit, for when you can file a claim for medical malpractice. Most states, including Michigan, also require that you provide the hospital with a notice of your intention to file a lawsuit within a certain period of time. There are some limited circumstances that can extend these time limits.
If you think you may have a malpractice claim, contact a lawyer as soon as possible. The lawyer can explain what the time limit is to file your claim and make sure you do not miss the deadline. And the sooner you talk with a lawyer, the more time they will have to build a strong case on your behalf before this deadline.
Hire a Medical Malpractice Lawyer
It is critical to find a medical malpractice lawyer as soon as you suspect you or a loved one may have been injured by negligence. We offer free consultations, and you have no obligation to bring a lawsuit if you meet with us. We are happy to listen as you explain the situation and talk with you about whether a lawsuit is the best option for you.
Make sure to bring as much documentation as you can to the consultation, including as many medical records as you can get. We will review your case with our medical team to determine if you have a strong case that is worth pursuing. If you do, we will begin to work on your claim right away – preserving evidence, filing the necessary notices, and lining up experts who will support your case.
In some cases, the medical professional or facility, along with their malpractice insurer, may be willing to engage in settlement negotiations before you file a lawsuit. This will avoid some of the expense of filing suit. Your lawyer will guide you through this process and advise you whether any settlement offer made is fair. It is ultimately your decision whether to settle or not.
Get Your Case Ready for Filing
In Michigan, a qualified physician must assess your case and conclude that it is valid before a lawsuit can be filed. The expert witness will then sign a “certificate of merit” in support of your claim. There are very specific requirements for what type of doctor can offer their opinion, considering their board certifications, what type of medicine they practice or teach most of the time, and how these factors compare to the defendant. Your attorney will make sure that a qualified expert is hired to complete the certificate of merit.
File the Complaint
The next step in a medical malpractice claim is to file a complaint. The complaint outlines the facts of what happened to you and the legal basis of your case. It will identify the defendants and the damages you have suffered.
The exact amount of money you seek in compensation is not generally included in a complaint. Identifying the specific court where you can file your claim depends in part on how much money is at issue; the only time a dollar amount is usually mentioned is in a statement that the damages are at least the amount that makes it appropriate to file your complaint in that court.
After your lawyer files the complaint, the lawsuit officially begins. Your lawyer will serve the complaint on the defendants in the next months, and then the defendant will submit their response to the allegations. Your lawyers will guide you through the rest of the litigation process and try to negotiate a fair settlement.
The Elements of a Medical Malpractice Lawsuit
There are five basic elements that an injured party must meet to succeed in a medical malpractice case. The elements are:
- Proving a provider-patient relationship existed. You must show that a licensed medical professional or a facility or its employee was providing you with professional medical care.
- The provider owed you a duty of care. Doctors, nurses, hospitals, and other medical providers have certain duties regarding the care they provide to you. These duties are called the “standard of care,” which is essentially a generally accepted standard of what a reasonable medical provider would have done under the circumstances.
- A breach of their duty of care occurred. A breach occurs if the doctor failed to fulfill their legal obligations to you by not complying with the standard of care. Proving that a breach occurred requires expert testimony from another physician in the same field. For your claim to be successful, the expert must testify that the defendant violated the standard of care.
- The breach resulted in your injury. You must show that the medical provider’s failure to meet the standard of care led to your injury or illness. The malpractice may have caused a new injury, aggravated a condition you already had, reduced your chance of recovering from a condition or caused some other harm.
- The injury led to damages. You must show how the injury or illness led to further losses. For example, you may have incurred additional medical bills for treatment to remedy the error. You might also have had to stay home from your job for several days and lost income. Damages also include the pain and suffering you endured unnecessarily due to the provider’s mistakes.
A medical malpractice claim can feel like an uphill battle when you try to meet each element. Your lawyer will ease the burden on you so you can focus on your recovery.
Medical Experts Support Your Claim
Your lawyer will gather various documents and records to build a strong case. In addition, they will bring in an expert to further support your claim. Healthcare experts explain how the defendant did the procedure or treatment incorrectly and what they should have done differently.
The type of expert you need depends on what form of medical negligence caused you harm. The expert must work in the same field of expertise as the defendant. For example, only a neurosurgeon can testify in a lawsuit concerning an error by another neurosurgeon.
Additionally, your attorney may hire a damages expert. That person can help explain how the injury resulted in economic or non-economic damages and quantify the number of damages.
Your medical malpractice lawyer has the resources to find the right experts who have the knowledge, experience, and credibility to be powerful witnesses on your behalf.
How Long Does a Medical Malpractice Claim Last?
There is no way to predict exactly how long a lawsuit will take, but medical malpractice cases can take a long time. For a case with clear liability, a settlement might be reached in a matter of months. However, most cases will take at least a year, or even longer if the issues are complex or appeals become necessary.
There are a number of factors that can make the case move slowly. Courts are often overburdened, especially as they tackle the backlog created by the Covid-19 pandemic. There may be delays in getting necessary records, or an appeal may be necessary. Your lawyer will work as efficiently as possible to minimize these delays.
Who Files if the Victim Dies From Medical Malpractice?
Medical errors lead to an estimated 250,000 deaths in the United States annually. If your family member is tragically killed as a result of malpractice, you may be eligible for compensation. The process for filing a lawsuit against a doctor is a bit different in this case. A personal representative must be appointed to represent the deceased. Fortunately, the time limit for filing your case does not begin to run until a personal representative is appointed by the court.
The estate of the deceased may be able to recover medical and hospital bills, funeral and burial expenses, and damages for the pain and suffering they underwent between the time of the malpractice and their death. Family members may be able to recover damages for the loss of financial support and their relationship with the deceased. The family members who may be entitled to these damages generally include the deceased person’s spouse, children, stepchildren, grandchildren, or other descendants, parents, grandparents, siblings, or those named in their will.
Can You Reopen a Medical Malpractice Claim?
When you reach a settlement, you will have to sign an agreement or contract before the defendant will give you the settlement check. This agreement will have a provision stating that you cannot sue the defendant in the future for the same incident. This document is legally binding.
If an injured person discovers years later that a doctor’s negligence caused more damages than they thought, there is no way to reopen your claim and get more money. As a result, you must ensure you know the true extent of your losses before you agree to a settlement. Your lawyer may advise you to wait to file your case until you have a good idea of how your injuries will affect you in the future. Once your case is filed, your lawyer will make sure that all of your damages are accounted for before a settlement is reached.