The Process of a Medical Malpractice Lawsuit

Each lawsuit is different, and each state has different laws. In general, here is the process in Florida, although your case may proceed differently. We can break it down into 4 stages: investigation, pre-suit, suit, and post-verdict. The process can take months to even years. Mediation (meeting with the other side to try to settle) can occur during any of the 3 later stages. It is very important, so we will discuss it here too.

The People Involved

Party: either the plaintiff or the defendant. In this website, a party is not a social gathering!

Plaintiff: the person filing a lawsuit. Usually this is the injured person, but it can be a parent (if the injured person was a child) or a personal representative (if the injured person died). A spouse can also sue for their loss.

Plaintiff's attorney: Devesh Tiwary is a plaintiff's attorney, at TiMedLaw. This type of attorney is hired by the plaintiff to represent him. Plaintiff's attorneys often work for a percentage of any recovery, so they take a risk of receiving nothing in the end.

Defendant: the entity (doctor or hospital along with the employer and corporation) being sued.

Defense attorney: the attorney hired by the defendant to represent him. They are usually paid hourly.

Third Party: someone involved in matters related to the claim but not a plaintiff or defendant. Examples include your health insurance company and your treating doctors.

Investigation

It is important to investigate the situation to see if the case is practical.

Basic hurdles

Are you within the time limits?

If more than 2 years have gone by since you should have known about the negligence, it may be too late. As always, there are exceptions (for example, for children or fraud).

Is there a valid claimant ?

A "valid claimant" is someone who can bring a claim. If an adult died from malpractice, you need a surviving spouse or dependent child (usually younger than 25 years old) to bring the claim (not a sibling or grown up child).

If we can pass these hurdles, we look at negligence, damages, and causation.

Negligence

Negligence is the failure to conform to the applicable standard of care. Basically, it means improper or careless behavior.

We look at the medical records to determine if there was negligence.

We need:

  • The medical records related to the incident (to show negligence)
  • The records after that (to help show the damages), and
  • The prior records dealing with conditions that may affect you now (to show that your current state is not due to other medical conditions).

We then identify who was negligent, such as a doctor or nurse.

Damages

The harm you suffered due to the negligence is called damages. Damages include items that are easy to measure, such as the wages you lost and your medical bills. They also include things that are hard to measure, such as your current state of health (if it is worse that in should be), the loss of your future earning capacity, and your suffering. We see if your damages are enough to make pursuing a claim worthwhile. Because lawsuits are costly, with going to trial costing up to $100,000, the damages must be high for it to make economic sense to proceed.

Obtaining an Opinion

If we overcome the basic hurdles, find negligence and can prove enough damages, we send the records to a doctor or provider who is in the same or similar specialty as the possible defendant. If this expert physician finds that the records show negligence causing harm, he or she writes a report. With that report, called a Verified Written Medical Expert Opinion, the case can proceed to the next stage, presuit.

The information you obtain here is not legal advice. Consult an attorney (preferably TiMedLaw!) regarding your own situation.

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