Medical Malpractice Lawyer FAQs

  • What does a medical malpractice lawyer do?

    Medical malpractice lawyers represent patients who have been injured during or as a result of medical treatment, when those injuries are caused by the negligence of health care providers, including physicians, dentists, anesthesiologists, clinics, and hospitals. A medical malpractice attorney will meet with a patient, determine if a malpractice case is warranted, gather information from the patient and from medical experts, depose defendants under oath, and negotiate a settlement on behalf of the patient. If an out-of-court settlement cannot be reached, a medical malpractice attorney will litigate the case in court on behalf of the patient.

  • Do I have a medical malpractice case?

    To have a medical malpractice case, a patient must have been injured when a health care provider, who had a duty of care to the patient, breached the accepted standard of care. An attorney looks for certain signs that medical malpractice has taken place, including:

    • A lack of informed consent, in which a person didn’t agree to a treatment or procedure, or the  provider failed to fully explain the risks before proceeding
    • A highly unusual outcome results from a procedure or treatment, which may indicate that the provider made a mistake
    • A patient is informed by their health care provider or hospital that a mistake was made
  • What are the chances of winning a medical malpractice lawsuit?

    According to the U.S. National Institutes of Health’s 20-year study of medical malpractice case outcomes, winning a suit largely depends on the strength of the evidence. Patients won just 10% to 20% of jury trial cases with weak evidence, compared to 30% of lawsuits with midrange evidence. Patients succeeded in 50% of cases with strong evidence. In addition to evidence, factors such as an attorney’s familiarity with the practice of medicine, and the attorney’s specialized background in medical malpractice law, may contribute to the success of the lawsuit.

  • Is a misdiagnosis suitable for medical malpractice?

    Misdiagnosis can constitute malpractice if it's proven that a doctor has failed to meet the usual standard of care. These types of cases usually involve mishandling of testing or delayed diagnoses. They may also involve a doctor's failure to interpret test results, screen for a specific condition, provide a specialist referral, discuss symptoms a patient is experiencing, or investigate possible causes of reported symptoms.

  • As a patient, how do I choose a good medical malpractice lawyer?

    Start by creating a short list of local medical malpractice lawyers specializing in plaintiff representation, then narrow it down by taking these steps:

    • Look at the lawyer’s website for details about their malpractice experience and knowledge.
    • Check whether an attorney is a member in good standing of local, state, and national trial lawyers' associations and the state bar association.
    • Ask what percentage of each lawyer’s caseload is devoted to medical malpractice, what portion of the cases go to trial versus settling, and how much of the case work is delegated to support staff.
    • Verify that an attorney works on a contingency fee basis and absorbs up-front expenses.
  • What percentage of a settlement do medical malpractice lawyers get?

    Medical malpractice lawyers typically represent clients on a contingency basis, receiving payment only if the plaintiff receives a settlement. The standard fee is 33% of the amount awarded. Attorneys may also pay litigation expenses up front, such as filing fees and other case-related costs, before receiving reimbursement from the settlement. Contingency fee percentages, other litigation costs, and payment structures may be negotiable.

  • What’s the statute of limitations on medical malpractice?

    Statutes of limitations for medical malpractice lawsuits differ in each state. The limitations in three of the most populous states show how these laws can vary:

    • California plaintiffs have one year from discovering an injury or three years maximum from the injury date. Cases of foreign objects left in a person's body during surgery have no three-year deadline.
    • New York claims must be filed within 30 months of an injury-causing event. The time limit for left-behind foreign objects is one year from discovery.
    • Texas plaintiffs have two years to file suit, post injury. There are several exceptions, including continuing treatment situations, discovery after the limit expiration, and a 10-year maximum limit.
  • How do you file a medical malpractice lawsuit?

    Taking these steps may get a medical malpractice issue resolved quickly or help when filing a lawsuit becomes necessary:

    • Contact the doctor or health care provider to discuss the injury and a solution to the situation.
    • File a complaint with the local medical licensing board.
    • Check the state’s statute of limitations for filing a malpractice claim.
    • Consult with an impartial medical expert to get a written opinion on whether accepted standards of care were followed.
    • Arrange a free initial consultation with a local medical malpractice lawyer to determine if filing a lawsuit is worthwhile.
    • Consider settling with the health care provider or their insurance company to avoid a lengthy court case.
  • How does a medical malpractice lawsuit work?

    A consultation with an attorney is the first step in initiating a medical malpractice lawsuit. During the consultation, the patient will explain their case, including their injuries and the impact of those injuries on their life and well-being. The patient will identify the person or organization they believe breached the standard of care, and indicate how they believe that breach led to their injuries. The attorney will determine if the patient has a viable malpractice claim, and if so, will enter into an agreement to represent the patient. Next, the attorney will begin an investigation, reviewing medical records and consulting with medical experts. Following the investigation, the discovery process will allow the plaintiff and defendant to share information with each other about the case under oath. In the vast majority of malpractice cases, the settlement phase follows. During this phase, the doctor or facility will agree to pay the plaintiff a mutually agreed upon amount of money. If a settlement cannot be reached during this phase, the medical malpractice lawsuit will proceed to trial.

  • As a healthcare provider, how do I avoid medical malpractice?

    With the goal of enhancing the quality of care provided, while also limiting the risk of harm to patients, doctors can reduce the likelihood of medical malpractice lawsuits by adopting best practices, such as the following:

    • Establish trusting relationships through open and honest communication, and disclose poor outcomes and errors if they occur.
    • Stay up to date on disease management methods, technological advancements, and current standards of care in their area of specialty.
    • Obtain informed consent by fully explaining the risks and possible outcomes of procedures and treatments.
    • Improve follow-up care after any missed appointments and scheduled tests and procedures to help prevent delayed or overlooked diagnoses.
    • Maintain accurate, detailed records of patient exams, treatments, and counseling provided.
  • What can a medical malpractice defense attorney do for a doctor who has been sued by a patient?

    While it can be upsetting and stressful to be sued by a patient, medical malpractice lawsuits are actually fairly common. In fact, a recent American Medical Association benchmark survey found that more than one third of physicians in the U.S. have been sued for malpractice at some point during their career. In the event of a patient lawsuit, the doctor’s malpractice insurance provider will supply the doctor with a malpractice defense attorney to handle the case. If the doctor is not confident with the insurer-provided attorney—for instance, if they sense that their case is being passed along to less experienced associates, or if they feel like they are being forced into a settlement by their insurer—they can hire, and pay for, private counsel. In these cases, the private malpractice defense attorney can explain legal procedures, weigh in on case strategy and settlement possibilities, and suggest stronger defense action if warranted.

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