Every year, more than 250,000 people in the United States die as a result of medical negligence. Many thousands more are injured as a result of delayed or missed diagnoses, prescription drug mistakes, and surgical or anesthesia errors. If you were injured during or as a result of a medical treatment and believe that you have a claim, a medical malpractice attorney can help you seek compensation. Here’s what you need to do:
- Check the statute of limitations.
- Initiate your medical malpractice claim.
- Find a qualified medical malpractice attorney.
- Determine how much the attorney will charge.
- Prepare questions for the consultation, and get answers.
- Decide what to do if an attorney won’t take your case.
Check the statute of limitations.
The statute of limitations determines how long you have to file a lawsuit. Deadlines for medical malpractice lawsuits differ in each state and can be dependent either on when the injury occurred or was first discovered. The statutes of limitations in three of the nation’s most populous states show how these laws vary:
- California plaintiffs have one year from discovering an injury or three years from the injury date.
- New York claims must be filed within 30 months of an injury-causing event.
- Texas plaintiffs have two years to file a post-injury lawsuit.
There are several exceptions, including continuing treatment situations, discovery after the statute tolls, and a 10-year maximum limit. For minors, the statute of limitations may only begin once the person reaches majority age.
Initiate your medical malpractice claim.
If you received substandard medical care, you may be able to reach a solution by working with the health care provider or filing a complaint with your state’s medical licensing board. Here are a few options to pursue before you consult an attorney or file a lawsuit.
- Contact the physician or health care facility to discuss the injury and see if you can come to an agreement.
- File a complaint with your state’s medical licensing board to ensure that the issue is properly investigated.
- Ask an impartial medical expert to review your case and determine whether the standard of care was met.
If you and the health care provider or facility are unable to agree on a solution, consulting with a medical malpractice attorney can help you explore options.
Find a qualified medical malpractice attorney.
Once you have established that you have a medical malpractice case, the next step is to find a qualified medical malpractice attorney. Begin by creating a short list of local medical malpractice lawyers who represent injury victims. Then, narrow down the selection based on their qualifications and expertise.
- Look at the lawyer’s website for details about their malpractice experience and knowledge.
- Check whether the attorney is a member in good standing of local, state, and national bar associations.
- Ask what percentage of the lawyer’s caseload is devoted to medical malpractice, what portion of cases goes to trial versus settling, and how much of the case work is delegated to support staff.
- Verify that the attorney works on a contingency fee basis and absorbs up-front expenses.
Medical malpractice is a broad practice area, so it’s important to hire a professional with relevant experience. Attorneys may focus on birth injuries, delayed diagnoses, faulty medical devices, medication errors, or slow-moving medical conditions, such as mesothelioma. Relevant legal experience shows that the attorney has a strong strategy and is familiar with the intricacies of that particular type of malpractice.
Ask about the attorney’s payment practices.
Medical malpractice lawyers typically represent clients on a contingency basis, which means that they only get paid if the plaintiff receives a settlement. The standard fee is 33% of the amount awarded although this can vary depending on the firm’s policies and state-level fee caps. Attorneys may also pay litigation expenses up front, such as filing fees and investigation costs, before they collect their fees from the settlement.
For example, after recovering $200,000 for the client, the lawyer takes $10,000 for fees and expenses, which leaves $190,000. Then, a contingency fee of $62,700 or 33% is deducted from the remaining amount, and a total of $127,300 is distributed to the plaintiff.
Prepare questions for the consultation, and get answers.
Whether in person or over the phone, it’s in your best interest to speak to multiple attorneys before making a hiring decision. Initial consultations allow attorneys to evaluate your claim, and they give you a chance to compare candidates. Prepare a comprehensive list of questions, and go through them one by one during your meeting.
Medical malpractice is a complex area, and not every personal injury attorney is capable of successfully litigating these claims. To give yourself the best chance for success, hire an experienced professional with a long case history and a strong track record.
- What percentage of your practice is devoted to medical malpractice?
- How many cases is your firm currently handling, and what portion of them are malpractice?
- How many medical malpractice cases have you handled in the past three years?
- How much experience do you have with my type of case, e.g. misdiagnoses, medication errors, or surgical mistakes?
In addition to bar association memberships and professional affiliations, top-performing medical malpractice attorneys often have awards, board certifications, and other valuable credentials. If an attorney believes it likely that your case will go to trial, ask them questions about their qualifications, past verdicts, and trial experience, including their stance on out-of-court settlements.
Evaluating Your Case
A good portion of your initial consultation will focus on the facts of your case. The attorney will ask for a timeline of events, evidence, and other relevant details. You will also have an opportunity to ask questions about the strengths and weaknesses of your claim, the types of damages you can recover, and what you can expect during the process.
- What kinds of expert witnesses would you call upon for my case?
- What factors could be detrimental to my medical malpractice case?
- How long will it take to resolve my claim?
- What types of damages can I recover?
What to Expect From the Law Firm
Every law firm is different. Some attorneys work closely with their clients while others use paralegals or case managers for most day-to-day activities. Asking the right questions can help you determine the attorney’s work style and what type of service you can expect.
- If I hire your firm, will I communicate primarily with my attorney, a paralegal, or other support staff?
- How often will your provide updates?
- What resources does the firm have to handle my case?
- May I speak to two recent clients?
Decide what to do if an attorney won’t take your case.
After consulting an attorney, you might be told that you don’t have a case or that your case will be too difficult to prove in court. According to 20 years of data collected by the National Institutes of Health, the success rate of malpractice lawsuits ranges from 10-50% depending on the strength of the plaintiff’s evidence. High litigation costs and factual details prevent many potential claims from ever making it to court. Here are a few of the most common reasons why attorneys may decline your case:
- The statute of limitations has tolled.
- The settlement isn’t enough to justify the time and effort required.
- Factual issues make it difficult to prove your case.
Consulting an experienced medical malpractice attorney is the best way to determine if you have a valid case, especially if you’re dealing with pushy insurance companies that want you to waive your right to sue. If you still aren’t sure, don’t hesitate to ask for a second opinion. An attorney can explain all of your options and help you take the next step.
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.