How to Start a Medical Negligence Claim?
Medical negligence happens when a health care professional deviates from his duty of care to his patient. This breach in the standard duty of care may result in injury or death to the patient, in which case the victim is liable to file a lawsuit for medical malpractice against the health care professional. Discovering that a patient has been the victim of medical negligence is traumatic and the steps towards filing a claim can seem complicated.
Hiring an attorney
From a legal perspective, it is possible to handle a medical malpractice claim without hiring a lawyer. However, several points need to be duly considered before making such as decision:
- First of all, bear in mind that each State in the United-States has their own regulations and processes regarding medical negligence. The claim will have to be filed in the State where the malpractice happened and not where the patient actually lives. A thorough knowledge of the legal regulations for medical negligence in that specific State will be required for the case to be viable.
- The claim must be filed before the statute of limitations expires. Again, the standard timescale varies from State to State, and some might allow more leniency than others.
- Depending on the case and the State where the lawsuit will be filed, the plaintiff might have to engage in pre-suit procedures, such as notice of intent, review boards, affidavits etc., before the lawsuit can be filed.
- It is important to consider how much is at stake in a medical negligence claim. This could amount to thousands worth of medical treatments consecutive to the negligence, loss of present and future income, and possibly long-life disability.
- Finally, the plaintiff will have present and argue their case against experienced defense attorneys, not the health professional being sued for negligence.
Hiring a medical malpractice attorney in the State of the negligence is, therefore, essential to ensure that all the requirements for the lawsuit to be filed are met and that the case will be viable to proceed.
Most medical malpractice lawyers will offer a free consultation for their potential clients. It is, therefore, important to contact several attorneys in order to choose the one that has the most chances of success. Asking a set of questions to each attorney is a good way to find out how much experience they have in handling similar cases, such as how many cases of medical malpractice has the attorney handled? How many of those have been successful? Do they have a medical expert available for the case?
The fee agreement should be signed as early as possible once the attorney is selected. A normal contingency fee ranges between 30% and 50%.
Obtaining the plaintiff’s medical records
It is essential to obtain the medical records of the victim of medical negligence. In fact, these are critical evidence in the medical negligence case as they determine whether or not the case can be successful. Once a copy of these medical records is in the possession of the plaintiff, it should be delivered to the attorney as soon as possible.
The attorney will conduct a thorough analysis of these records, seeking the opinion of doctors and other medical professionals who might serve as medical expert witnesses in the case. It is important to note that in order to allow the attorney and the defense’s attorney to access the patient’s medical records, the plaintiff will have to sign a release, as they are protected under privacy laws. The sooner these are transferred to the attorney the quicker the lawsuit process can start. However, it is entirely possible that after the thorough review of the patient’s medical records, the attorney advises not to file a claim, as the damages might not be related to malpractice.
Advising facilities and insurances
Advising the hospital or medical facility and/or insurances of the potential malpractice lawsuit can be valuable. Indeed, such act will trigger an internal investigation and might lead the medical facility to reach out for a settlement. The attorney hired will act as a mediator and in some cases, both parties might find a satisfactory settlement without having to go as far as filing the lawsuit.
Pre-suit notice requirements
Different States will have different processes leading up to filing a negligence claim. These pre-suit requirements were implemented to help legitimize medical malpractice lawsuits and prevent unviable claims to be brought to court. The requirements may vary from State to State, however, most States will stipulate the plaintiff must provide an affidavit from a medical expert supporting the claim that the health care professional had indeed breached the medical standard of care, which then resulted in the patient’s injury or death. Failing to comply with these requirements could result in the claim being dismissed on procedural grounds.
Filing the medical negligence lawsuit
The last step of the process leading up to a malpractice claim is filing the lawsuit. This happens when the attorney has compiled enough evidence to prosecute the case. The claim is a formal written notice of the allegations against the health care professional and or health care facility.
Once the defendant receives the formal complaint, their attorneys will start their own investigation. Once the lawsuit is filed, the standard timescale for a medical negligence claim process can take from 18 months to more than two years until the case is brought to trial depending on each individual cases and the amount of money involved.