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Medical Malpractice Lawsuit Process: What You Need to Know


A medical malpractice lawsuit can be devastating for those affected. Medical malpractice refers to when a medical professional fails to meet the standard that the law imposes on them, giving rise to injuries or even death. In this article, we will help you understand the medical malpractice lawsuit process. While every case is different, generally, a medical malpractice lawsuit can take several years to settle. It will take longer if it is necessary to proceed to trial, which it can be required in some cases. Medical malpractice lawsuits follow the same process as other civil lawsuits, but they present unique challenges because this is a highly technical area of law. 

Understanding Medical Malpractice 

The requirements for a successful medical malpractice lawsuit are the same as other personal injury cases, and they are the following:

  • The defendant(s) must owe a duty of care to the injured party (or parties);
  • The duty of care was breached (also sometimes referred to a breach of the standard of care); 
  • The party (or parties) launching the medical malpractice lawsuit suffered harm; and 
  •  The defendant(s) conduct must have been the cause of the loss(es).

In medical malpractice lawsuits, two issues are usually at the forefront of the case: the standard of care and causation. These two issues need to be proven by the party that is brining forward the medical malpractice lawsuit. This party is known as the plaintiff, and there may be several plaintiffs. 

Causation is a seemingly straightforward concept. Yet, in a medical malpractice lawsuit, the plaintiff often requires an expert opinion, usually from a specialized physician. In law, causation depends on whether the plaintiff can prove that but for the actions of the defendant(s), the plaintiff would not have suffered the injuries that they are claiming. 

The standard of care refers to whether the medical professional, who is the defendant, met the obligations that the law imposes on him or her. Like any professional, there are expectations associated with the treatment and care provided to the plaintiff(s). This issue also requires an expert opinion.

The plaintiff has the obligation to prove that he or she suffered damages from a medical provider, who failed to act appropriately, causing the plaintiff(s) to suffer a loss. The damages or losses can be economic or non-economic. Economic losses include out of pocket expenses, income loss (both past and future), and costs related to care or treatment. Non-economic losses typically refer to the emotional impact that medical malpractice can cause individuals and their family members. Following an instance of medical malpractice, a person’s quality of life can suffer immensely as well. The law recognizes these losses.

Stages of a Medical Malpractice Lawsuit

The first stage in the medical malpractice lawsuit process involves consulting with a lawyer who is knowledgeable about medical malpractice lawsuits. The field of medical malpractice is highly complex and requires a great deal of skill. At Bogoroch & Associates LLP, this consultation is of no cost because we believe in access to justice for all. These cases funded through what is known as a contingency fee agreement.

The second stage in the medical malpractice lawsuit process entails a detailed investigation by the lawyers who have been retained. This is a multistep process. The lawyers will obtain the relevant documentation, which includes the medical records of any physicians, treatment provides, hospitals, diagnostic clinics, among others. It is only by reviewing the evidence that the case begins to become clearer. After a review, the law firm will proceed to obtain an opinion on the key areas: the standard of care and causation. A clearer picture will begin to emerge, as experts become involved and help shed light into the matter. 

The third stage of a medical malpractice lawsuit is about preparing and attending examinations for discovery of the relevant parties. An examination for discovery involves the plaintiff(s) or the defendant(s) asking questions posed by a lawyer who represents the opposing party. By this point, the parties involved will have the documentation that is relevant to the medical malpractice lawsuit. The questions are meant to obtain relevant information related to the issues in the case. 

The fourth stage in the medical malpractice lawsuit process is mediation. This is an opportunity for the parties to speak to one another, usually virtually, via Zoom. The idea behind this stage of the medical malpractice lawsuit process is that the parties have now had the opportunity to assess the medical malpractice lawsuit. This means that the parties can determine the appropriate amount to settle. Some cases can settle at this stage. Other cases may need to proceed to a trial because the defendant(s) and the plaintiff(s) did not come to an agreement on what they deem to be an appropriate settlement figure for the specific case. Of course, while the lawyers will provide advice, the client is the one who ultimately decides whether he or she wants to settle the case.

The fifth stage in the medical malpractice lawsuit process is going to trial, which can be the last stage in most cases. This is now an opportunity to have the case decided by a judge or a jury. A judge or jury will carefully assess the evidence in the medical malpractice lawsuit and will provide a decision. There are witnesses, often several, and they may include treatment providers, as well as the experts who have offered their reports to opine on the material issues. 

The final stage of the medical malpractice lawsuit process is one that only applies to a few cases: it is addressing an appeal. While most cases do not proceed beyond the initial trial, appeals are more common in medical malpractice cases compared to other cases. 

Note: most cases are subject to a two-year limitation period, which refers to the period of time that a person has to launch a medical malpractice lawsuit, starting from the moment that the alleged medical malpractice occurred. Since the various stages can take some time, it is critical that you contact a lawyer as soon as possible if you think you are facing a medical malpractice lawsuit. 

Why You Need a Medical Malpractice Lawyer

A medical malpractice lawyer can help you navigate this complicated process and will ensure that your medical malpractice lawsuit receives the attention that it deserves. It is vital that you contact an experienced medical malpractice lawyer since there is often a lot at stake. These cases are vigorously litigated and almost always require expert reports. These cases can include but are not limited to:

  • Misdiagnosis;

  • Delayed diagnosis;

  • Birth injuries;

  • Surgical errors or surgical malpractice;

  • Birth Injuries; and

  • Fatalities due to negligent medical treatments.

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