Medical Malpractice:

Filing a Medical Malpractice Lawsuit

Medical Malpractice, unfortunately, is a surprisingly common occurrence. Some estimate that between 5 and 10 percent of all hospital patients are subjected to medical malpractice in some form. However, these cases are rarely pursued as lawsuits, and even fewer result in compensation for medical malpractice damages. While the odds may be daunting and the defendants (doctors and their insurance companies) may be intimidating, this should not stop anyone who believes they have a legitimate medical malpractice lawsuit from seeking just recompense.

When evaluating a potential medical malpractice lawsuit, there are several factors that should be considered before filing the case.

Medical Negligence

Can negligence on the part of the doctor or other medical professional be proved? Medical negligence is primarily tied to the concept of a “standard of care". The standard of care refers to the way in which other, similarly qualified doctors, given the same situation, would be expected to act. Obviously, the more specialized the medical professional’s field, the higher the standard of care. OB/GYN’s, for example, are held to a very high standard. If a doctor’s actions (or failure to act) meet the standard of care, regardless of the consequences, then negligence cannot be proved. A doctor’s conduct must be below the standard of care and harm must result if he or she is to be considered negligent. The strongest medical malpractice lawsuits typically arise from what should be common place procedures that, due to the negligence of the medical professional, result in injury or death. These provide the clearest instances of a doctor’s deviation from the standard of care. Examples include misdiagnosing cancer, complications arising during labor, birth, and c-sections, plastic surgery malpractice, anesthesia errors, and mistakes involving prescriptions.

Demonstrable, Serious, and Lingering Injury

Strong medical malpractice suits are able to clearly demonstrate that the actions of the doctor resulted in an injury that is both serious and lingering. Headaches and soreness following a surgery are unlikely to result in a successful medical malpractice lawsuit. The key is that the injury must meet all three criteria. Therefore, if the headaches do not go away, if they are incapacitating, and they can be demonstrated, the lawsuit is quite strong. Evidence of the injury is important; otherwise, it may be dismissed as hearsay. An inability to prove injury is a possible reason for not filing the lawsuit.

Medical Records

Before filing a medical malpractice lawsuit, it is important to obtain all medical records. While it is the right of any individual to have access to his or her records, an attorney can be of assistance if medical facilities are uncooperative. A medical malpractice lawsuit must have a record of the treatment.

Finally, it is important to consult with a medical malpractice attorney to determine the strength of the case and the prudence of pursuing it. Bringing a weak case can be an incredible emotional drain and result in the loss of considerable time and money. An experienced attorney will be able to weigh the variables and offer sound advice about how to proceed.