Medical Malpractice: What You Need to Prove
This guide is general information, not legal advice. Laws differ from state to state and change over time. For advice about your situation, talk to a licensed lawyer in your state.
Medical care does not always go as hoped, and a bad outcome does not automatically mean a doctor did something wrong. Medical malpractice is a specific legal claim with strict rules. This guide explains what has to be proven and what to expect.
The four elements of a malpractice claim
- Duty: a doctor-patient or provider-patient relationship existed, so the provider owed you a duty of care.
- Breach: the provider failed to meet the “standard of care,” meaning what a reasonably careful provider in the same field would have done in similar circumstances.
- Causation: that failure actually caused your injury. This is often the hardest part to prove, especially when you were already sick.
- Damages: you suffered real harm, such as additional medical bills, lost income, pain or disability.
Common types of malpractice claims
- Misdiagnosis or delayed diagnosis
- Surgical errors
- Medication and prescription errors
- Birth injuries
- Anesthesia errors
- Failure to get informed consent, meaning a patient was not told about significant risks of a procedure
Special rules for malpractice cases
Expert testimony
In almost every case, you need a qualified medical expert to explain the standard of care and how it was breached. Many states require an expert’s written statement, sometimes called a certificate or affidavit of merit, when the lawsuit is filed or soon after.
Pre-suit requirements
Some states require written notice to the provider, a waiting period or review by a medical panel before a lawsuit can be filed.
Damage caps
Many states limit the amount that can be awarded for non-economic damages such as pain and suffering. Caps usually do not limit economic damages like medical bills and lost wages, but the rules vary.
Deadlines
Malpractice claims have strict time limits. In many states, the statute of limitations is two or three years, and sometimes shorter. Some states start the clock when the injury was discovered or reasonably should have been discovered. Many states also have a “statute of repose,” an outer limit that can bar a claim after a set number of years no matter when the injury was discovered. Special rules often apply to children and to claims against government hospitals. Because of these deadlines, talk to a lawyer as soon as you suspect malpractice.
What you can do now
- Request copies of your medical records. Federal law generally gives you the right to access your own records.
- Write down a timeline of your care: dates, providers, symptoms and what you were told.
- Keep bills, receipts and records of missed work.
- Get the follow-up care you need, even if it is from a different provider.
Finding a malpractice lawyer
Malpractice cases are expensive to bring because they require expert witnesses and extensive records review. For that reason, many lawyers take only cases with serious, provable injuries. Most work on a contingency fee, and some states limit the percentage. A lawyer can review your records, consult with medical experts and tell you honestly whether a claim is worth pursuing.
Find a Personal Injury lawyer near you
Browse Personal Injury lawyers on NearLawyers, or choose your state to see lawyers grouped by city. You can also search by legal issue and location from the home page. Searching and contacting lawyers through NearLawyers is free.
