Should I File for Medical Malpractice? What You Should Know

Recent reports suggest that medical error is the third leading cause of death in the United States. A figure that is not only alarming, but also undermines the feeling of trust one should have in the health care system.While death due to medical error is the most extreme case of medical negligence, there are other cases, too.


Sometimes the error is immediately obvious. Such as with the case of unneeded surgeries, resulting in removing healthy organs. Other times, evidence of an error takes time to appear. For example, in the case of surgical implements being left in the body during surgery.

A medical negligence attorney will be able to give you guidance on whether your case fits the parameters of a malpractice suit. But first, here are some aspects of medical negligence suits that you should know about:

How is medical malpractice defined?

Not every case of being misdiagnosed is basis for a medical negligence claim. For example, if you were misdiagnosed, but no harm resulted in your diagnoses, then you cannot file a claim. The specific laws governing a medical malpractice suit vary from state to state, so you will need to find out what qualifies in your state. Generally, however, the terms that must be met for a suit of this kind include:

  • You had a doctor / patient relationship.That is to say, you can’t sue someone for advice you overheard during a party.
  • Your doctor was negligent. You must be able to prove that the doctor harmed you in a way that another doctor, under the same circumstances, would not have.
  • Your doctor’s or hospital’s negligence caused injury and specific damages. Even if your doctor did not provide an acceptable standard of care, if you cannot prove that this resulted in damages, you have no case. You must be able to show that negligence resulted in measurable damage to body, emotions, or mind.
Closeup portrait of a disappointed young lady surgeon with her hand on her face
Closeup portrait of a disappointed young lady surgeon with her hand on her face

What are common types of malpractice suits?

The three most common categories for medical malpractice suits include:

  • Failure to alert a patient of risks. For example, your doctor has the duty to warn you if a medication or treatment has risks. This is known as informed consent. If your doctor or health care provider did not warn you of a possible outcome that later caused you harm, then you have the basis for a suit.
  • Failure to provide proper treatment. If your doctor fails to provide an acceptable standard of care that other doctors in the same situation would give, you have the basis for a suit.
  • Failure to correctly diagnose an illness or condition. If your doctor fails to diagnose an illness that another doctor would be able to correctly diagnose, you have the basis for a suit.

What other requirements are in place for filing a medical malpractice suit? 

Many states have specific laws regarding malpractice suits. These often include a limited time that spans when the injury occurred and when you can file a suit. Failing to file a suit during that time will cause your case to be dismissed automatically.

Some states also require you to submit your case to a review panel. The review panel consists of experts who review evidence and decide whether malpractice occurred. The findings are submitted to the court, and the court uses this preliminary session to make their ruling on whether or not to award damages.

Expert testimony given by a doctor or other medical health professional is also often required by courts. What is permissible as expert testimony varies by state.

As with many other issues related to medical malpractice, you will want to research the laws of your state to determine how viable your case is. Consult with a trusted law firm that specializes in malpractice to see what your chances are of getting awarded damages. This should be your next step in better understanding your chances of compensation.

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