When a hospital makes a mistake that rises to the level of negligence, a patient has a legal right to receive compensation for any resulting injuries. While medical malpractice laws are designed to protect the rights of patients who have been given substandard medical care, the first step in asserting those rights must usually be taken by the patients themselves. This article describes those steps in-depth.
1) Act Promptly
The biggest mistake a patient can make is waiting too long to file a claim. Time limits (called "statutes of limitations" in legalese) require patients to file legal claims promptly. The time limits vary by state, but they can be as short as one year from the date the treatment mistake was made.
As this article will discuss, a patient may have to jump through a few hoops before filing a legal complaint. This makes it more critical that the patient not wait before attempting to file a claim.
2) Discuss the Case With a Medical Malpractice Attorney
A medical malpractice case isn't the kind of legal action you want to try handling on your own. These cases can get very complex from a legal, medical, and procedural standpoint. Proving your case is going to require not just a firm understanding of the law as it applies to your situation, but a familiarity with the kinds of hoops a medical malpractice plaintiff needs to jump through, including the retention of the right expert medical witness in most cases.
Medical malpractice lawyers generally offer free initial consultations. Most rely on contingency fees, meaning that the patient never pays the lawyer. If the lawyer wins the case, the law firm takes a portion (usually about 1/3) of the award. If the lawyer loses the case, the lawyer usually is not paid, though the client may be on the hook for a few small costs.
3) Determine Whether the Hospital Itself (and Not an Independent Contractor) Was Actually Negligent
This is a crucial determination. Just because medical negligence occurred at a hospital, it doesn't necessarily follow that the facility itself can be held responsible. If your case is based on sub-standard care provided by an individual doctor, and that doctor is an independent contractor (and not an employee of the hospital), you need to pursue action against the doctor him/herself. In many cases, you can't sue a hospital for a doctor's treatment error, unless the doctor is an employee of the hospital (most are not), or when the doctor's incompetence should have been obvious to the hospital.
If you suspect your doctor is negligent for medical malpractice, read the article "How to Sue a Doctor."
4) Obtain Medical Records
A hospital must keep every patient’s medical records for at least a few years after treatment. Upon request, the hospital must give copies of the records to the patient (however, the hospital may charge a fee for copying expenses).
5) Determine Your Damages
At some point, the hospital might make an offer to settle the case. So, it is important for the patient to determine the value of the case. The patient should consider all possible losses and harm stemming from the malpractice, including,
- past and future medical expenses
- past and future wage losses
- pain and suffering
- loss of enjoyment of life (the decreased value of a person’s life as a result of the injury, measured by changes in lifestyle, such as the loss of the ability to enjoy sports, walk or play with children), and
- loss of consortium (losses to family members as a result of the injury, measured by loss of companionship or the loss of the ability to engage in certain activities).
6) Determine Who to Sue
Whose is legally responsible for the mistake? Was it a doctor’s or a hospital’s (we touched on this in item 3 above)? What about a nurse or an ambulance service? If the answer is unclear, the patient may sue more than one party. It is critical that all parties responsible are sued because it may not be possible to go back later to make a change.
7) Comply With any Procedural Rules
Many states require patients to jump through a few hoops before filing medical malpractice lawsuits. These requirements vary by state. A patient might have to file an affidavit of merit in which a qualified medical expert attests that the plaintiff has a valid case. A patient also might have to submit a claim to a medical review board before filing in court, or agree to some form of alternative dispute resolution (ADR).
Sometimes, a patient must comply with these state rules before filing a medical malpractice complaint in court. Check the law in your state and the filing requirements in your jurisdiction, or speak with an experienced local medical malpractice attorney.
8) Draft and File a Complaint
The complaint should indicate the patient’s name, the names of the parties responsible, a description of how the injury happened, the harm that was caused, and the amount of money that the patient expects in compensation. The patient should file the complaint at the office of the clerk of the local (i.e. county) branch of the state court, usually called "[state name] Superior Court, County of [county name]." You should also be sure to comply with any special procedural rules (as discussed in item 7, above).