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The First Steps to Take in a Medical Malpractice Case

By
Lia Kopin-Green
/
July 14, 2022
Last reviewed by
Boruch Burnham, Esq.
/
April 20, 2023

Have you been injured or suffered the loss of a loved one due to your medical provider’s negligence? A medical malpractice case arises when a patient is injured or harmed by poor medical treatment or a mistaken diagnosis by a medical professional, such as a medical facility, doctor, nurse, or another medical provider. Read on to learn about the first steps you should take when filing a medical malpractice claim.

Check the Statute of Limitations

A victim of medical malpractice has a limited amount of time to file a lawsuit against a negligent doctor, health care provider, or facility. The law that sets this limit is known as the "statute of limitations." If you wait too long to file your case and the statute of limitations expires, you will lose your right to pursue your claim. This is why verifying the statute of limitations that applies to malpractice cases in your state is crucial. Each state has different statutes of limitations, which vary based on the exact nature of the particular claim. So, it is highly recommended that you consult with a lawyer with extensive experience in medical malpractice cases.

Consider Hiring a Lawyer with Medical Malpractice Expertise

Medical malpractice cases can be extremely complicated and involve technical details that may greatly benefit from the assistance of an attorney, even if you think you could handle them yourself. Therefore, before moving forward with any other steps in your medical malpractice case, it is highly recommended that you consult an experienced medical malpractice lawyer. In addition to providing crucial assistance in filing a claim and completing the necessary paperwork, your attorney will advocate on your behalf to strive for the best possible outcome in your case. In the event of medical negligence, hiring a powerful attorney can give you the best chance of receiving compensation.

Obtain Copies of Your Medical Records

State and federal law protect the right to obtain a copy of your medical records. Your medical records may be the primary source of evidence you can use to support your medical malpractice claim. Therefore, obtaining a copy of your records as soon as possible is highly recommended. Due to privacy regulations, you must either ask for the copies yourself or sign a release form authorizing your lawyer or other qualified representatives to request them on your behalf. 

Make sure to obtain records from all doctors and facilities that treated you, such as nurses’ and doctors’ notes, examination results, medication prescriptions, or anything else that you feel could be relevant to your case. By reviewing your medical records, your attorney can familiarize themselves with the details of your claim and start assembling a strong and compelling case that can help you get the compensation you deserve.

Fulfill the Pre-Suit Requirements

Many states impose pre-suit requirements that must be fulfilled before you can file a medical malpractice lawsuit. While the exact details vary by state, pre-suit requirements may include the following:

  • A certificate of merit. A certificate of merit is a document stating that the plaintiff has consulted with a qualified medical expert who believes there is a valid basis for the claim. The certificate must be provided by a qualified medical expert who meets certain qualifications and who must review the relevant medical records and attest that the healthcare provider or facility failed to meet the applicable standard of care. 
  • A notice of intent to sue. Generally referred to simply as a “notice of intent,” these notices are intended to provide healthcare providers and facilities with notice of the allegations of malpractice, including the factual basis and nature of the malpractice claims, and to provide them with an opportunity to investigate and potentially resolve the claim before a lawsuit is filed. 
  • Attending mediation or alternative dispute resolution (ADR). Some states may require that the parties try to first resolve the matter through mediation or ADR proceedings in which a neutral third party (referred to as a mediator or arbitrator, respectively) facilitates negotiations between the parties so that they can attempt to resolve the claim out of court.

Although it is not required in any state, some states allow the parties to conduct pre-suit discovery, in which each side can request and obtain relevant evidence and information, such as medical records, documentation, and witness statements, before the lawsuit is filed. 

File the Complaint

Once you have completed all the necessary steps, it's time for you or your attorney to officially initiate the lawsuit by filing a complaint. The complaint must identify the parties to the suit, provide details supporting your allegations of negligence on the part of the medical provider, stipulate the damages you suffered, and include a request for relief. A request for relief is the legal term that sets forth the types, and amounts, of damages you are suing for. Damages may include compensation for lost wages, pain, and suffering, mental and emotional distress, etc. 

Filing a complaint involves a lot of paperwork and strategies that may seem complicated if you are not a lawyer. A professional attorney with extensive malpractice experience can help you navigate this complicated process and obtain all the necessary documents to be fairly compensated for your injuries or losses.

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