Medical malpractice occurs when a healthcare provider's negligence — a deviation from the accepted standard of care — causes injury or harm to a patient. These cases are among the most complex personal injury claims, requiring expert medical testimony and substantial documentation.
16 steps across 2 sections
1. Steps Process
- Recognize potential malpractice — Distinguish between an unfortunate medical outcome and actual negligence. Malpractice involves a provider failing to meet the standard of care (what a competent pr...
- Seek corrective medical treatment — Get appropriate medical care for your injuries. This both protects your health and creates medical records documenting the harm.
- Gather your medical records — Request complete records from every healthcare provider involved: test results, surgery reports, nursing notes, medication logs, discharge papers, and imaging studies....
- Consult a medical malpractice attorney — These cases require specialized expertise. Most attorneys offer free initial consultations and work on contingency (typically 33-40% of recovery). They will...
- Obtain expert medical review — Your attorney will have a qualified medical expert review your records to determine if malpractice occurred. This is essential — without expert support, the case cann...
- Obtain a certificate of merit — Many states require a signed affidavit from a medical expert stating that the provider deviated from the standard of care and that deviation caused your injury. This...
- Send a notice of intent — Many states require you to notify the healthcare provider of your intent to sue before filing. This notice includes the nature of the claim and the injuries sustained. The...
- File the lawsuit — Your attorney drafts and files a complaint outlining the negligence, injuries, and damages sought.
- Discovery phase — Both sides exchange evidence, take depositions of parties and experts, and build their cases. This phase can last 6-18 months.
- Settlement negotiation or trial — Most cases settle during or after discovery. If not, the case goes to trial where a jury decides liability and damages.
2. Key Details
- Statute of limitations: Varies by state (1-6 years from the injury or discovery of injury)
- "Discovery rule": In many states, the clock starts when you knew or should have known about the malpractice
- Damages: Medical expenses, lost wages, future care costs, pain and suffering, and sometimes punitive damages
- Many states cap non-economic damages (pain and suffering) in malpractice cases
- Informed consent claims: If the provider did not explain risks of a procedure, and you would not have consented if you had known
- Wrongful death claims can be brought by family members if malpractice caused death
Common Mistakes
- Waiting too long to consult an attorney (statutes of limitations are short in...
- Not obtaining all medical records promptly
- Continuing treatment with the provider who caused the harm without documentin...
- Posting about your case on social media (opposing counsel will find it)
- Expecting a quick resolution (these cases typically take 2-4 years)
Pro Tips
- Request medical records as early as possible — providers are required by law ...
- Keep a personal journal documenting your symptoms, limitations, and emotional...
- Do not sign any medical authorizations from the defendant's insurance company
- Ask your attorney about the specific requirements in your state (certificate ...
- If your attorney declines the case, get a second opinion — different attorney...