The Steps of Filing a Medical Malpractice Claim
Most lawsuits are relatively simple processes. However, medical malpractice claims are not in this common group. Doctors enjoy considerable professional respect from the legal system, as medical science is not viewed as an exact science in every situation. Medical facilities are more likely to be qualified for a malpractice claim allowance, as physicians are given the legal range to err on a problematic diagnosis.
Of course, the prognosis and treatment regimen is based on a proper diagnosis, so a misdiagnosis can result in an ineffective treatment program or wrongful death. This scenario occurs more often than most patients think, as many patients trust their doctors with their lives, literally.
Step 1. Obtain Your Medical Documents
Request copies of all medical records from all physicians and facilities involved in treating the condition. Your legal representation will need these documents to investigate what occurred and what legal rights of recourse may exist. Your attorney will be able to request any other medical documents after he has been retained.
Step 2. Hire An Experienced Medical Malpractice Attorney
It is practically impossible to file suit against a doctor or medical facility without an experienced attorney. Malpractice suits can be complicated cases and are always intensely defended. In most states, the process begins with an evaluation by multiple medical expert groups who determine if the case has the merit to move forward.
“Any time a duty is violated, a personal injury claim can potentially arise” says the attorneys at Auger & Auger. But filing suit against a doctor must be approved and supported by an affidavit from a third-party medical expert, usually another doctor, who will outline the standard diagnosis and treatment analysis in the form a professional opinion. Additionally, an attorney will normally implement a network of physicians who serve as expert witnesses for their clients.
Step 3. Notify the Facility or Physician
Sometimes the injured victim can file this process themselves, but it is not a good idea in most cases. Remember that the facility will not be the only respondent, as all medical professionals carry malpractice insurance. This means the insurance provider will have the authority to demand more evidence, usually by sending the patient to their network doctors.
Retaining an attorney quickly means they can notify and deflect any motion for summary dismissal by the company. Malpractice attorneys are professional negotiators in the same mold as insurance adjusters, so the attorney provides added protection against the respondent.
Step 4. Follow All Medical Requests Before Filing
The court systems will only allow the case to proceed if all pre-suit requirements are completed. This is absolutely crucial to filing the claim. All respondents will request some activity on the plaintiff’s part, so be prepared to follow directions of all involved parties. This can provide an argument for the respondent, but the states supposedly require this step in an effort to eliminate frivolous cases from the dockets. Failure to comply with pretrial requirements will result in a summary dismissal before the case is even filed.
Step 5. File the Claim
Instruct your attorney to file the claim immediately because of the statute of limitations. Be prepared that, depending on the location of all parties, jurisdictional problems can arise and the case can become unnecessarily complicated.
It is important to make a definitive decision immediately, based on all case factors. This decision, should you choose to move forward, should be followed by careful choice of legal representation and from there, leave the work to the attorney in order to ensure that the case will move to the pretrial discussion phase, which will be followed by negotiations and eventually a trial, if needed. Many times the issue can be settled in negotiations, depending upon the seriousness of the medical injury.
Former healthcare worker, Molly Pearce is a freelance author and artist who regularly address the issues of health, law, and human rights in her work. She writes to emphasize the necessity of the immediate, proper actions when it comes to filing any type of injury claim, particularly one involving medical malpractice. Research for this post was collected in part from the website of Auger & Auger, a North Carolina personal injury firm who has extensive experience in dealing with a variety of personal injury cases, including medical malpractice.