A Basic Guide for a Medical Malpractice Case

Resources & Guides Med. Malpractice Oct. 6 6 min read

Medical malpractice cases are filled with questions like, “What do I do now?” and “What comes next?” It can be challenging to comprehend your options as you try to recover from an often painful medical error.

Here’s a helpful guide for medical malpractice claims to provide some answers about what these cases involve.

Medical Malpractice Common Questions

Unfortunately, after an instance of malpractice occurs, doctors and nurses won’t often admit to being negligent. That’s why hiring an attorney is essential to establishing a strong medical malpractice case. A good lawyer will conduct a thorough investigation to gather medical records, perform medical literature searches, and consult medical experts.

An investigation will help answer some of these common questions:

Did medical malpractice occur?
Do I have a strong case?
How expensive is a medical practice case?
Do I have to pay my attorney an upfront fee?
How do I find out if my doctor acted negligently against me?
How long does a medical malpractice case take?
Will my case go to trial, or will it get settled out of court?
Will my medical malpractice case require me to pay out of pocket for anything?

What Qualifies as Medical Malpractice?

Medical malpractice has another common, “Medical Negligence.” If you see these two terms, don’t get confused because they are referring to the same thing—and are defined as an incident in which a medical professional didn’t provide reasonable medical care, leading to a patient sustaining an injury.

Proving medical negligence requires a patient to show a “standard of care” was violated, but what does this mean? This standard is one that a reasonable, competent medical professional must follow in their services. This violation will serve as evidence in a medical malpractice case.

Some examples of injuries that would qualify as medical malpractice include:

Failure to treat a condition
Failure to recognize a condition, sickness, or illness in a patient
Failure to recognize or diagnose a blood clot
Failure to diagnose an illness
Failure to treat or prevent a stroke
Bowel or intestine injuries during surgery
Sudden death at a hospital
Pulmonary embolism
Injury during surgery
Surgical error
Unnecessary surgery
Wrong-site surgery
Wrong medication/dosage
Misdiagnosis of a condition or illness
Birth injury – hypoxic-ischemic encephalopathy
Leaving a sponge or surgical instrument in a patient after a surgery

How Should I Prepare Before Meeting with my Medical Malpractice Lawyer?

While a medical malpractice lawyer is there to help you with your case, preparing some things before you meet with them will be helpful.

Here are some of the things you should gather before your consultation:

Records from your doctor’s office
hospital records
operative reports
triage or emergency room records
results from lab tests
consultation notes, admission records
diagnostic tests such as CT scans, MRI, or X-ray reports
hospital discharge reports

This documentation will allow your lawyer to understand your case more quickly. Once the attorney officially takes on your case, they will ensure a complete set of your medical records is requested.

Your lawyer will decide whether to take the case or if they need to see more documentation. They may ask about the nature, duration, and severity of your injuries.

An Overview of a Medical Malpractice Case

1. Attorney Fees

Most medical malpractice lawyers charge by way of a contingency fee—a paid percentage is taken off the total recovery, either by settlement or verdict from a jury. This also means that if your case doesn’t end with any kind of recovery, you don’t owe your lawyer anything because their payment is “contingent” upon helping you recover on your behalf. A low-end contingency fee percentage would be 33.3%, whereas 50% would be the high end.

2. Case expenses

It is important to realize that investigating and filing a medical malpractice case is not free and is usually expensive. These cases require medical records, expert witness fees, deposition costs, travel costs, and court fees. These costs could be advanced by you or your attorney, depending on what you agree on. Note that if your lawyer does pay these fees in advance, they will be added to the contingency fee.

3. Expert Witnesses

Medical malpractice cases typically require the testimony of expert witnesses. A plaintiff will file an affidavit from an expert who will provide at least one instance of negligence by a medical professional. Expert witnesses can establish the standard of care and how it was violated in your case as well as if the injuries you sustained were the result of medical malpractice. Unfortunately, expert witnesses are costly and fall under the category of case costs.

4. Settling vs. Going to Trial

Whether a case goes to trial or settles out of court depends on the circumstances of each particular claim. As your lawyer works through your case, they will be able to advise you on whether you will be more likely to settle or go to trial.

5. Damages

Damages you can claim compensation for include second do-over surgery, lost wages, pain and suffering, permanent impairment, loss of enjoyment of life, disability, scarring, and future medical costs. The quality of evidence in your case will determine your damages.

6. Timeframe for Medical Malpractice Cases

After filing your case, it will generally take between ten to eighteen months to reach a settlement or go through a trial.

7. Payment of Settlement or Verdict

The recovery you are given will be paid by the doctor’s or hospital’s insurance company. Typically, hospitals have money set aside to pay claims, settlements, or verdicts.

Final Thoughts

Medical malpractice cases are better handled by a lawyer who is experienced in handling these complex claims. If you have additional questions about a potential medical malpractice case, talk with an attorney as soon as you can to ensure your case gets off on the right track.