Each year, an estimated 250,000-plus people in the United States die as a result of medical negligence. Many thousands more are injured as a result of misdiagnosis, surgical and anesthesia errors, and prescription mistakes. If you’ve been injured during or as a result of medical treatment, and you believe you have a claim of medical malpractice, a medical malpractice attorney can be your best asset in seeking compensation for your claim. Here’s what you need to do:
Confirm that your claim falls within the statute of limitations.
Take these steps to strengthen your claim.
Start your attorney search and narrow down your options.
Understand the attorney’s fee structure and how much you’ll pay.
Get clear answers to these 13 questions for a medical malpractice attorney.
Let your attorney handle the insurance companies.
Have realistic expectations about winning your case.
Understand why an attorney might not take your case.
Confirm that your medical malpractice claim falls within your state’s statute of limitations.
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.
Take preliminary steps to help strengthen your malpractice case.
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.
- Consult with an impartial medical expert to get a written opinion on whether accepted standards of care were followed.
Start your medical malpractice attorney search, and narrow down your options.
Once you have taken the initial steps to establish your medical malpractice case, your next step is to find a medical malpractice attorney. Begin 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.
Get a clear understanding of how much a medical malpractice attorney will cost.
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, though this can vary somewhat from state to state and firm to firm. 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.
- An example: The attorney charges a 33% contingency fee, and agrees to pay expenses up front. If the case settles for $200,000 and the lawyer paid $10,000 in litigation fees, the lawyer would be reimbursed for those fees first, then take their 33% contingency (payment for services) of $62,700 out of the remaining $190,000, leaving the patient with $127,300.
Have a list of questions to ask a medical malpractice attorney, and get clear answers to all of them.
Whether via phone calls or in-person initial consultations, it is in your best interest to speak to multiple attorneys before signing a contract for legal representation. Make sure you have a comprehensive list of questions at hand, and go through them one by one, taking note of each answer:
- What percentage of your practice is devoted to medical malpractice cases?
- How many medical malpractice cases have you handled in the past three years?
- How much experience do you have with my type of medical malpractice case, i.e. surgical error, prescription error, diagnostic error, etc. (ask to see case history)?
- Have you been recognized for achievement by the National Trial Lawyers’ Association and/or certified by the American Board of Professional Liability Attorneys?
- How many total cases is your firm currently handling, and what portion of them are medical malpractice cases?
- What notable or newsworthy cases have you handled?
- What percentage of your medical malpractice cases reach settlement before trial?
- How extensive is your trial experience?
- What kinds of expert witnesses would you call upon for my case?
- What factors do you think may be detrimental to my medical malpractice case?
- If I hire your firm, will I communicate primarily with my attorney, or a paralegal or other support staff?
- What resources does the firm have to handle my case?
- May I speak to two recent clients?
Getting answers to these questions from multiple attorneys—and following up by speaking to their past clients—better equips you to choose the right lawyer for your particular case.
Also note: The initial consultation is not just a chance for you to ask questions, but an opportunity for the attorney to determine if they believe you have a viable case. See below for more.
Let your attorney deal with the health care provider’s insurance company.
One of the most daunting parts of the negligence claim process is facing the health care provider’s insurance company. Patients are often surprised to discover that doctors have little to do with the malpractice process once a claim is filed. Instead, the doctor’s malpractice insurance company takes over, providing the doctor or hospital with defense attorneys to handle the case. One of the biggest benefits of hiring a medical malpractice plaintiff’s attorney is not having to deal with the doctor’s insurance company, and defense attorneys, yourself. A medical malpractice attorney will help you gather documents and records the doctor’s insurance company may demand, and will help ensure that you aren’t pressured into settling before the full extent of your injuries and damages have been assessed.
Have realistic expectations about winning your case.
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 mid-range 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.
Understand why a medical malpractice attorney may refuse to take your case.
This is a difficult one if you’ve been injured, you are suffering, and you feel strongly that your injuries and the impact they’ve had on your life are the result of negligence on the part of your doctor. But the truth is that not all injuries sustained during or after medical treatment are caused by negligence. And, perhaps more importantly in the case of seeking representation, not all negligence cases are worth the up-front costs for an attorney to take the case on. An attorney may have to invest tens of thousands of dollars up front to initiate and pursue a malpractice lawsuit on a patient’s behalf. And the attorney only recoups those costs if they win the suit, either via pre-trial settlement or in court. For an attorney to deem a case viable, they have to be confident not only that the suit is likely to be successful, but that the amount of the likely settlement is substantial enough to cover those up-front costs and provide sufficient fees. This issue becomes even more significant in states with strict caps on medical malpractice damages. Here are major reasons why an attorney won’t take a medical malpractice case:
- The attorney believes that the breach of the standard of care is too difficult to prove. A surgical instrument left inside a patient’s body, for instance, may be a clear breach of care, while a late diagnosis of a serious condition may not.
- The attorney believes the value of the settlement will not be sufficient. If the attorney anticipates that a settlement will be worth $30,000, for example, and their up-front investment is $10,000, and commission percentage is 33%, they will only be entitled to $6,600 in fees.
- The statute of limitations has run out. This is a fairly easy one to determine. Each state has a statute of limitations on medical malpractice claims, and they may vary depending on the type of claim being pursued. If you’ve waited too long to pursue a case, and the statute of limitations has run out, an attorney will not take your case.
The materials provided in this article are for informational purposes only and not for the purpose of providing legal advice. Use of and access to this article or any of the links contained in the article do not create an attorney-client relationship between the author and the user or browser. You should contact your attorney to obtain advice with respect to any particular issue or problem.