Written by Avvo Staff

Understanding the medical malpractice process

What are the steps of a medical malpractice case?

Each state addresses medical malpractice cases in slightly different ways. Most importantly, each state has a specific statute of limitations, or deadline, for medical malpractice cases. Check with your state's laws or your lawyer to see if your case falls within the timeline before moving ahead.

If you suspect malpractice occurred

Ask your doctor

Before you file a case, contact the medical provider who cared for you. Sometimes your doctor can provide additional services or referrals free of charge to address your injury. In some instances, communication and follow-up care make the best solution.

Contact a lawyer

Because of the complex nature of medical malpractice lawsuits, a lawyer is absolutely necessary. In the initial stages of your case, an experienced lawyer will be able to review the details of your case and explain the types of evidence you'll need to prove malpractice occurred. This is also an opportunity to determine if you are interested in hiring this lawyer, should you decide to sue.

If you decide to sue

Contact the licensing board

If communication and follow-up care do not help you, contact that provider's medical licensing board. The board will be able to issue warnings, discipline the provider, and help you with your next steps.

File a certificate of merit

Many states require patients to file a certificate of merit. This document signifies that a medical expert reviewed your records and determined that your healthcare provider did not provide you with appropriate care, causing your injury and damages. A medical malpractice lawyer can file this on your behalf.

Defend your case

If your doctor admits to malpractice after reviewing the evidence with his or her attorney, your case will not go to court. However, if your doctor does not admit fault, a trial will be held in civil court, where a jury will determine if malpractice occurred. If your doctor admits fault or is found guilty, you will receive a settlement based on the damages associated with your injury.

Even if you win your trial and are granted a settlement, the defendant can still appeal. You may not collect your settlement until your case passes your state's deadlines for appeal. In order to appeal a decision, you must prove that an error occurred that affected the outcome of the trial. After reviewing the details of your trial, the court will choose to uphold your case's original decision, reverse your case's original decision, or order a re-trial.

If you receive a settlement

If you are granted a settlement out of court, the defense lawyer will write up a document called a release. This document details the terms of your settlement. Both lawyers must find the release agreeable, which could happen immediately or take several months. Once your lawyer finds this document acceptable, you will sign it. Make sure you read it yourself and ask your lawyer about the outcome of your settlement terms. Once you sign it, you cannot renegotiate. 

Before you receive any funds from your settlement, you must pay off any debts or liens. Common costs include:

  • Medical liens are paid to your health care providers and insurers.
  • Government liens are paid to government agencies like Medicare, Medicaid, and child support agencies.
  • Attorney fees are typically 20% to 40% of your total payout.
  • Expert witness fees range from $400 to $600 an hour, depending on their level of experience.
  • Other court fees, including the costs associated with filing paperwork.

An experienced medical malpractice attorney will be able to advise you on whether or not your case is strong enough to reach a settlement or win in court.

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