Sue a Doctor

You may want to sue if your doctor was negligent in providing medical care. People are often reluctant to sue a doctor for medical negligence because they aren't aware that they can, or they don't want to sue for damages. If you were injured as the result of negligent medical care, a lawsuit may provide you with compensation for your injuries.

Steps

Building Your Case

1. Document your injury. If you are suffering from pain, a loss of mobility, or reduced vision or hearing, then you will want to document it. The amount of compensation you can win at trial depends on the extent of your injuries. It is helpful to document these injuries as soon as possible after treatment.
   • If you have bruising, cuts, or infections, take photographs. This evidence will be useful at trial since it shows your condition immediately after receiving treatment from the physician. By the time you reach trial you might be better, but you can still be compensated for the injury your doctor caused.
   • Keep a journal of what you are feeling. Pain may be difficult to document with photographs since it is not visible. Write down how intense the pain is, its duration, and the day and time in which it occurs.
   • Preserve all prescription pill bottles as well as prescription information for any medication that you take.
   • Documenting your injury is the most important thing you can do to build a strong medical malpractice case.
2. Request your medical records. Gather a complete set of medical records for your trial, including radiology reports, notes from your doctor, and reports from third-party medical professionals who you visited. You should call your doctor to ask about the specific procedure, as some doctors use third parties to store records.
   • HIPAA gives patients the right to get copies of all of their medical records. Patients also have the right to view their original medical records. Your doctor should provide them within 30 days of request.
   • You must also complete a release form. Your doctor’s office should provide you with this.
   • If your provider denies your request, it must provide you with a denial letter. The letter should tell you how to appeal, but also realize that you can get the medical records with a subpoena after you initiate a lawsuit.
3. Determine who to sue. When suing a doctor for malpractice, you can sue the doctor independently. In some cases, you can also sue the hospital where you received the negligent treatment.
   • If you were injured during surgery, you also may sue anyone who attended to you during surgery, such as doctors and nurses.
   • Write down where you received the negligent treatment: in a hospital? in the doctor’s office? at your home? Then list all the staff who attended to you.
4. Act quickly. Every state has a statute of limitations, which requires that you bring your lawsuit within a certain amount of time. Limitations periods vary by state. New Jersey has a 2-year statute of limitations. Washington has a 3-year limitations period.
   • The limitations period may be extended if the injury you suffered remained latent. For example, if you had surgery 5 years ago but complications did not develop until 5 years later, the 2-year statute of limitations will not begin running until you discovered the injury. This is called the “discovery rule.”
   • States will not extend the limitations period indefinitely. Regardless of when the injury is discovered, some states will bar a lawsuit if too much time has passed. Montana, for example, will bar a medical malpractice claim after 5 years, even if the injury could not have been discovered until after the passage of 5 years.
5. Follow medical advice. One of the most common defenses to a medical malpractice claim is to allege that the plaintiff failed to mitigate her pain and suffering. Therefore, you should follow medical advice to the letter.
   • If you have been told to stay off your feet, you shouldn’t be hiking up a mountainside or playing outside with your children.
   • Failure to mitigate is not a complete bar to recovery for medical malpractice. However, it may make you less sympathetic in the eyes of the jury and could reduce the amount of compensation you receive.

Hiring a Lawyer

1. Make a list. Medical malpractice cases are among the most complicated cases to pursue, so you will need a lawyer. Check your Yellow Pages for attorneys, and perform a web search. Type “lawyer,” “medical malpractice,” and your city into your favorite search engine.
   • Your attorney must be experienced in medical malpractice cases. The insurance company that defends the doctor against your lawsuit will not take an inexperienced attorney seriously during settlement discussions. Consequently, you could get a lower settlement.
   • An experienced medical malpractice attorney also will be able to find an effective expert witness, which is critical in these types of cases. Often, doctors do not want to testify against doctors, so it is important that your attorney have a network of physicians who are willing to testify.
2. Identify medical malpractice specialists. Some states certify specialists in medical malpractice. California, for example, will award certification if an attorney has passed certain exams and has been practicing for a sufficient amount of time.
   • You can check for specialists by visiting your state bar association.
   • Be advised that not all certified specialists represent plaintiffs. Some will only defend doctors and hospitals.
3. Search for disciplinary sanctions. Visit your state’s disciplinary board to see if the attorney has been sanctioned in the past. Attorneys are sanctioned for ethics violations, such as disclosing client confidences or failing to respond to client emails. They are not sanctioned for failing to win cases, unless their performance was so low as to be negligent.
4. Study the lawyer’s website. Look for attorneys who specifically mention having represented plaintiffs in medical malpractice lawsuits. They should have represented a plaintiff recently.
   • Also look to see how professional the website is. An attorney whose website is replete with grammatical errors may be careless in his representation of you.
5. Meet for a consultation. Many lawyers provide free consultations. Call the office. An in-take specialist will ask questions to see if you meet certain criteria.
   • For example, some medical malpractice attorneys may only focus on certain aspects of medicine, such as obstetrics or children’s health care. The in-take specialist will let you know if the attorney handles lawsuits for the kinds of injury you suffered.
   • When you meet with an attorney, she will probably want to see your medical records, as well as gain some idea of the extent of your injury. You should already have gathered this information before meeting with her.
   • Be skeptical of promised results. An attorney cannot promise a result, nor can he guarantee a certain amount of money. However, he can tell you what typically happens with cases like yours, based on his experience.
6. Discuss fee arrangements. Medical malpractice cases are expensive to bring. However, most lawyers will work on a contingency fee basis. Under this arrangement, the attorney gets paid only if you get compensated, either at trial or through settlement negotiations.
   • Even if the lawyer works contingency, you will probably have to cover court costs. These costs include fees for filing documents, serving documents on the defendant, paying a court reporter, and hiring expert witnesses. Try to get an estimate of these costs at the outset.
   • Contingency fee arrangements vary, but between 30-40% is common.
7. Analyze the case with the lawyer. An attorney should give you a good idea if the claim is even worth pursuing. Even if a doctor has made a mistake, a lawsuit may not be worth pursuing. When deciding whether to bring suit, lawyers look at the following:
   • Permanent injury. A permanent injury is more impressive to a jury than a temporary injury.
   • The amount of damage. Because litigation is so expensive, attorneys will want a suit to be worth well over $150,000 in damages.
   • Clear causation. If the medical treatment aggravated a prior injury, your claim could be worth less because the jury may decide that the prior injury is to blame for your pain and suffering.
   • How sympathetic the plaintiff is. If the plaintiff has a criminal record, then the amount of damages awarded could be lower.

Preparing for the Lawsuit

1. Discuss strategy with your lawyer. Your lawyer will have ideas about what witnesses to contact and what documents to get from the defendant.
   • You should tell your lawyer about illnesses or injuries that you had prior to the doctor’s negligence.
   • Also notify your lawyer if you have not followed the doctor’s instructions after treatment. Be honest. If your doctor told you to stay in bed for three weeks but you were up and walking within three days, this evidence will probably come out at trial. You should tell your attorney so she can prepare for it.
   • Your doctor’s treatment could still be negligent even if you didn’t comply with his instructions.
2. Draft the complaint. A lawsuit is initiated by filing a formal complaint in court. The complaint will allege the circumstances surrounding the lawsuit as well as the cause of action. In a medical malpractice suit, the cause of action will be that your doctor fell below the “standard of care” common for doctors.
   • File the complaint in court. Your attorney will do this for you.
   • A copy of the complaint must be served on the defendant along with a summons. You can usually mail it to the defendant, although it is also common to have it served using the sheriff or a professional process server. You will probably pay for the cost of service (between $20-100).
3. Engage in discovery. After a lawsuit has been filed, each party is able to request documents from the other party. If you were unable to get all of your medical records before meeting with a lawyer, you will be able to get them now.
   • The defendant is also able to request documents from you. Any photographs or video you took to document your condition is discoverable. Also, you will have to turn over any medical records you have pertaining to your condition.
4. Sit for a deposition. During discovery, the parties are able to ask questions of witnesses at a deposition. The purpose of the deposition is to gather evidence from potential witnesses. As the plaintiff—and the person whose injuries are at the center of the lawsuit—you should expect to be deposed.
   • Depositions are usually taken at a law office and are under oath. You or the defendant will hire a court reporter so that there is a record.
   • You should prepare for the deposition with your lawyer. Statements made at a deposition can be introduced at trial.
5. Defend against a motion for summary judgment. Depending on the facts of your case, the defendant may file a motion for summary judgment. Essentially, the defendant will argue that there are no issues of material fact, so the case can be decided by the judge on the basis of the law.
   • In a medical malpractice case, the doctor will argue that even if the allegations are true, that his conduct did not fall below the required standard of care.
   • Your attorney will defend against a motion for summary judgment by arguing that the doctor’s conduct could fall below the standard of care and, therefore, a trial is necessary to resolve this issue.
6. Participate in settlement negotiations. You may meet with the defendant and the insurance company for informal settlement discussions. Settlement will help the parties avoid trial and come to an agreement on the amount of money you should be compensated.
   • At the settlement discussions, you should always remain professional and calm. It is standard for defendants to try to “low ball” you by offering a low amount initially. You do not have to accept it, and your attorney can counter with a higher amount.
   • If the defendant makes a settlement offer, your attorney must notify you of it. It is up to you whether or not to accept a settlement.
7. Consider mediation. If settlement fails, mediation may be an option. In mediation, a third-party mediator listens to each party state its case and then identifies strengths and weaknesses in each party’s case. The mediator also proposes areas of agreement between the parties. In two recent studies, about 68% of all mediated cases settled.
   • The mediation process is more informal than trial, and may make you feel more comfortable. Participants in mediation report high levels of satisfaction with the process.
   • Mediation will allow you to find out what exactly went wrong. This can bring emotional closure.
   • You could also get compensation much quicker with mediation than by going through with a lawsuit.

Going to Trial

1. Select a jury. You will select jurors from the pool of available jurors called into court on any given day. To identify good jurors, the lawyers will ask them questions, in a process called “voir dire.”
   • You will want to identify jurors who are prejudiced against your case. Some jurors may fear that a large verdict for you will impact their ability to secure medical care.
   • Your attorney can draw out prejudices by asking jurors if they or a family member have studied medicine, if they know of someone who has brought a medical malpractice suit, and whether they have had any particularly good or bad experiences with doctors or hospitals.
   • Alternatively, you may present the case to the judge. In a normal trial, the judge decides questions of law and the jury decides facts. But you have the option of using the judge to determine the facts as well. One study showed that you are twice as likely to win a bench trial as a jury trial.
   • Generally, both parties must agree to a bench trial. If one party requests a jury, then there typically is a jury trial.
2. Deliver opening statements. In the opening statement, your attorney highlights the evidence he will present. Opening statements are not evidence themselves. Rather, they provide a sneak peek as to what evidence will be presented.
   • An effective opening statement will get to the point (fifteen minutes or less) but also tell a narrative.
   • Your attorney should also disclose “bad facts” in the opening statement. A bad fact is anything the defense would want to bring to the jury’s attention because it makes the defense case much stronger. For example, your failure to follow your doctor’s prescribed treatment is a bad fact. By disclosing bad facts first, your attorney can take the sting out of them.
3. Present evidence. As the plaintiff, you will present evidence first. You will call and examine witnesses and get records admitted into evidence.
   • You will be called as a witness, to testify as to what you remember about the treatment you received from your doctor as well as about the injury you suffered. You will be limited to testifying about what you saw, heard, and physically felt. You cannot testify that you believe your doctor’s treatment was negligent.
   • Your attorney will also call an expert witness. The expert will testify as to what treatment a competent doctor would have given in the situation, and then she will compare your doctor’s treatment to that standard. Unlike a lay witness, an expert may offer an opinion, i.e., that your doctor’s treatment fell below the required standard of care.
4. Cross-examine witnesses. Your attorney will have the opportunity to cross-examine the defense’s witnesses. Your attorney will try to impeach the witness with a prior inconsistent statement or otherwise try to show gaps in the witness’s testimony.
   • Your attorney will also question the defense expert witness. He will try to undermine the expert by questioning his credentials and by asking him about the fee he will be paid for testifying. Your lawyer may also try to impeach the expert through use of an expert treatise that contradicts the testimony given by the expert.
5. Deliver closing arguments. The closing argument is your lawyer’s chance to explain how the evidence presented should command a result in your favor.
   • In a bench trial, the court will often request that the attorneys write briefs. These are legal arguments, which cite to the evidence presented as well as to the controlling legal authority.
6. Await the verdict. In a jury trial, the jury will retire for deliberations. In about half of all states, jury verdicts for civil trials do not have to be unanimous. Instead, a plaintiff can prevail if 10 out of 12 jurors decide for her.

Warnings

• If you agree to a settlement with your doctor's medical malpractice insurance company, you will be asked to sign a legal document that prevents you from suing the doctor in the future for the same injuries.

Related Articles

• Sue for Medical Malpractice
• Sue for Trespass

Sources and Citations

See also

• Get Out of Jury Duty
• Counter Sue
• Sue Your Employer
• File a Case in Small Claims Court
• Address a Judge in Court
• Appeal a Judgment Without an Attorney
• Defend Yourself in Court
• Get a Restraining Order
• Serve Court Papers
• Win a Wrongful Termination Lawsuit

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