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How to Sue a Doctor: 8 Steps

By
Lia Kopin-Green
/
July 26, 2022
Last reviewed by
Boruch Burnham, Esq.
/
May 28, 2023

Doctors and other medical providers should help improve our conditions or injuries, not make them worse or create new ones. Medical malpractice cases, however, may be more common than you think. The Medical Malpractice Center estimates that 15,000 to 19,000 malpractice suits are filed against doctors each year in the United States.

This step-by-step guide will explain how to sue a doctor if you have been injured or lost a loved one because of your medical provider's negligence.

1. Document your injuries.

The first step to gathering evidence of medical malpractice is to document any pain or injury caused by the provider's negligence. Any cuts, infections, or other injuries should be photographed as soon as possible. The images should show your condition immediately after the negligent incident so that you can prove your case even if you are healed by the time you first start pursuing your claim. Additionally, it is recommended that you keep a journal to record details about your symptoms, such as how severe they are and how long the pain persists. Keeping medication containers and prescriptions for any medications you took for your injuries is also a good idea. One of the most crucial pieces of evidence will be the documentation of your injuries, which experts will examine to help determine how much compensation, if any, you should receive.

2. Act fast.

The statute of limitations limits the amount of time a medical malpractice victim has to file a claim against a doctor or health care provider. You can lose any right to compensation for your injuries if you fail to do so before the statute of limitations expires. While you cope with the aftermath of your doctor's malpractice, putting off filing your claim may seem tempting. However, you could face severe consequences if you delay your case for too long. Therefore, the sooner you file your medical malpractice claim, the better.

The length of statutes of limitations varies from state to state but is usually between two and three years from the date the injury was discovered or the date it should have reasonably been discovered.

3. Consider the benefits of hiring a lawyer.

There are many complicated legal details to consider when handling medical malpractice cases, which is why a lawyer with extensive legal experience and knowledge is best suited to handle the case. At this stage, you should consider consulting an attorney before taking further steps toward suing your doctor. As mentioned above, time is of the essence when it comes to medical malpractice suits. Having the assistance of an attorney with extensive malpractice experience will speed up the process of filing your claim before the statute of limitations expires. Your attorney can assist you in filing your claim and completing the necessary paperwork, as well as advocate for the best possible outcome for you.

4. Obtain your medical records.

Medical records will serve as the foundation for your malpractice case, so it is essential to gather them as soon as possible. These records typically include notes from the doctor, lab results, radiology reports, and documentation of medications. You may request the records from your doctor or hospital, or you may authorize your attorney or other qualified representative to obtain them on your behalf by signing a release form. Under federal law, medical providers and facilities must provide you with copies of your records within 30 days of your requests, although some states impose shorter periods.

5. Determine who to sue.

As soon as you have gathered your evidence and you and your attorney have a clear understanding of what happened, it is time to decide who you would like to take legal action against. First, decide whether you want to sue the medical provider, the facility, or multiple defendants at once. For example, it may be possible to consolidate your claims against multiple doctors who attended you, as well as nurses or other medical providers who helped treat you at any point. 

On the other hand, there are instances where you may be required to file multiple lawsuits against different defendants, such as where jurisdictional issues prevent you from suing some of the defendants in the same venue. An experienced lawyer will help you choose the best options for your specific case.

6. Notify the party or parties you intend to sue

Before you officially file your lawsuit, some states require that you submit a formal notice to the doctor before filing a medical malpractice lawsuit against them. Notifying your doctor also gives you and your attorney the opportunity to work out a settlement before you pursue your claim through the court system.

7. Comply with all applicable pre-suit requirements

Most states have enacted pre-suit requirements that must be met before filing a medical malpractice claim. These procedural hurdles are imposed to prevent unnecessary or false claims against healthcare providers. Obtaining a "certificate of merit" is among the most common requirements. To receive this certificate, you will need to consult with a qualified medical expert who will determine whether negligence was present in your case and if the treatment you received fell below the expected standard of care. Other states require that you attend alternative dispute resolution (ADR) proceedings before pursuing your claim through the courts. Your lawyer can inform you about pre-suit requirements and guide you through fulfilling them.

8. File your official complaint.

Finally, the lawsuit is officially initiated by filing a summons and complaint with the court and providing a copy to the defendant(s). The complaint must contain a “cause of action” against the party or parties you are suing. A cause of action must generally establish that a) the defendant(s) owed you a duty of care, b) they breached that duty of care, c) your injuries were caused by the breach and d) you have suffered damages as a result of the breach. There is a wide range of damages that you may sue for in medical malpractice claims, including physical and/or emotional pain and suffering, medical expenses, lost wages, and more.

It is important to note that a settlement is always an option at any stage of the judicial proceedings. In fact, most medical malpractice cases are resolved before going to trial. Throughout the entire process, your attorney will assist you in maximizing your chances of receiving the maximum compensation and other damages you may be entitled to.

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