What Are the Stages of a Medical Malpractice Lawsuit?

Use these links to jump to different sections:

• Meet With a Medical Malpractice Attorney
• Investigation
• Find a Medical Expert Witness
• Discovery
• Settlement Negotiations
• Trial

If you or a loved one has been injured by a medical provider, you may be considering filing a medical malpractice lawsuit. When patients are injured due to a health care provider’s negligence, the law offers medical malpractice lawsuits as a way to recover. This can help you recuperate the cost of medical bills, lost earnings, and other damages you suffered due to a doctor’s negligence.

To succeed in a medical malpractice lawsuit, you generally must demonstrate that:

• A provider-patient relationship existed.
• Your health care provider (the defendant) breached their duty toward you by treating you in a way that deviated from the normal standard of care. This is known as medical negligence.
• Your provider harmed you through their negligent medical treatment.
• Your provider’s actions directly caused the injury you suffered.

If you (the plaintiff) are considering suing for medical malpractice, you need to meet with an attorney to help you determine whether you have a valid claim. Medical malpractice claims can take a long time to resolve. So, it’s wise to ask an attorney to honestly evaluate your chances of success before beginning a lawsuit.

Meet With a Medical Malpractice Attorney

The first step in a medical malpractice lawsuit is to arrange meetings with attorneys. Attorneys usually offer a free consultation as the first meeting. This allows you to ask the attorney some questions and decide whether they are the right medical malpractice lawyer for you.

Depending on your situation, it might be wise to meet with a couple of lawyers before committing to one. You should choose someone you like and trust to represent you on this important matter. It’s also important to choose someone whose law firm is conveniently located and has availability to suit your schedule. After you have completed your first meetings with attorneys, you will decide whether to proceed with your lawsuit. If you do, your attorney will begin preparing your case.

Investigation

To prepare your case, your attorney will start with some initial investigation. This will involve asking you some questions to fully understand what you experienced. Then they will collect medical records related to the injury you suffered. These medical records may include your medical history.

In some instances, your attorney may uncover information that leads them to believe that you do not have a valid case. In other situations, they may find details that strengthen your medical malpractice claim. Medical malpractice is a highly specialized area of the law, so formulating your case might be more complicated than you would expect. As your attorney works through the facts of your case, it’s a good idea to stay in touch with them. This will allow you to clarify any inconsistencies and learn what your attorney thinks of your case as they work through the facts.

Find a Medical Expert Witness

Once you and your attorney are confident that you have a valid claim, you will start looking for an expert witness. In a medical malpractice case, an expert witness is usually a doctor who practices medicine in the same specialty and geographic region as the defendant. Having a good expert witness is a key element to your medical malpractice case. They can testify about the standard of care in your area. In other words, they can explain how a reasonably competent medical professional would have treated you under the circumstances. They can further explain how the treatment you received fell below this standard in their expert opinion.

In many states, your expert witness or another doctor must submit an affidavit to the court to certify that your case has merit. This is usually called an Affidavit of Merit, and the court must receive it before the discovery stage.

Discovery

Discovery is a pre-trial stage of a medical malpractice case. During the discovery phase, the parties can seek information that’s relevant to the case. You and the defendant will request documents and records from each other during this stage. You may also send questions to each other. Lawyers call these questions interrogatories.

You will also likely need to give a deposition as part of the discovery process. During a deposition, you will answer questions under oath about the medical treatment you received, your injuries, and other information that’s relevant to your claim. Likewise, your attorney can depose your medical provider during this stage.

Settlement Negotiations

Although some cases may settle before the lawsuit is filed, it’s more common for parties to reach a settlement after the discovery process. At this point, the parties should have all the facts. This helps them to evaluate their chance of success at trial.

A doctor’s insurance company is usually involved in these negotiations. If they believe that you will win based on the facts of the case, they will do their best to reach a settlement with you. In fact, most medical malpractice cases settle at this point, before going to trial. If your case goes to trial, there is no guarantee that you will prevail. Settlements are preferable for most plaintiffs because it eliminates the uncertainty of a jury trial and the stress that comes with court proceedings. If you settle your case, this will be the final stage of your medical malpractice lawsuit.

Trial

If the parties cannot agree on a fair settlement, a trial will be necessary. Depending on a variety of factors, your court date may get rescheduled several times before it actually takes place. One of the main reasons parties prefer to settle is to avoid this prolonged legal process.

During a trial, your attorney will present evidence of the injuries you suffered to a jury. Your medical expert will testify, and the defendant may offer expert testimony to support their case too. After all the witnesses have testified, the attorneys will give closing arguments and the jury will deliberate. Depending on the case, jury deliberations can be lengthy. While the jury deliberates, it may ask the judge questions or request clarifications on jury instructions.

If the jury decides in your favor, they will then decide what type and amount of damages to award you. These damages come in the form of compensatory damages or punitive damages. Compensatory damages compensate you for the injury you suffered, with the goal of making you “whole” again. Compensatory damages can include lost wages, medical expenses, and others.

Punitive damages are less common. They are only available in cases of egregious medical malpractice where a medical provider acted in some sort of willful way or with wanton disregard for your well-being.

You should be aware that there may be limits, or caps, on medical malpractice awards in your state. States usually apply these caps to the amount you can recover for non-economic damages. Non-economic damages are damages that are difficult to quantity. This includes pain and suffering, loss of enjoyment, mental anguish, and more.

If you or a loved one received negligent medical care that harmed you, you should not delay meeting with an experienced attorney for legal advice. There may be a statute of limitations in your state that puts a time limit on your ability to sue your doctor. So, it’s wise to act quickly.

To learn more about this area of law, see our overview on medical malpractice.