How to File a Medical Malpractice Lawsuit and What to Do Afterward

If you (or someone you know) have experienced a medical malpractice incident, then compensation may be available. 

Filing a medical malpractice lawsuit can be a complicated process. However, it is the best option for patients looking to receive the necessary accountability and benefits. 

Working with a medical malpractice lawyer ensures you will receive the knowledge, expertise, and representation required to file a successful claim.

How to File a Malpractice Lawsuit With a Lawyer

Know what a malpractice lawsuit entails

Before filing a medical malpractice lawsuit, it is important to first understand what that means and if you fit into the criteria. Malpractice is usually defined as a situation where the actions of a medical professional directly cause harm to a patient. In these cases, the decisions made by either a doctor, nurse, or medical institution are deemed negligent and did not meet the standard level of care another practitioner may have provided. 

To file this type of suit, you must prove at least one of three things:

1. There was a violation of the standard of care.

2. An injury was sustained directly as a result of negligence.

3. The outcome of your medical care has resulted in long-term damages. 

4. You must meet one or more of these criteria to have a chance at successfully filing—and hopefully winning—a medical malpractice lawsuit.

Discuss the situation with your medical practitioner 

To have a clear understanding of the situation and the decisions that took place, you need to speak with the medical professional in question. Not only will this allow you to find mutual ground, but they may also be able to provide a better breakdown of what happened, where there were errors and open discussion for any opportunities to correct it.

Having these conversations may also strengthen your case down the line because it demonstrates your willingness to bring attention to the issue and find a reasonable solution.

Determine if the standard of care was met

The key factor in proving a medical malpractice case is determining whether or not the standard of care was properly met. These medical standards are set in place by the industry to hold medical professionals accountable and outline the necessary steps to follow in a given situation. 

As a patient, you are entitled to the proper level of care and should trust that medical practitioners—as well as their institutions—will provide this.

Get in touch with the medical board

If the medical professional in question does not provide any further assistance in the situation, then you may want to consider contacting their medical board. Although these governing bodies cannot force a medical professional to act, they do have the power to issue a warning or begin the disciplinary process where appropriate.

Gather evidence

To prove a crime was committed, you must have evidence to back up the claim. The same applies when attempting to file a medical malpractice lawsuit. This can include:

1. Proof of your injuries or incurred damages

2. Expert witnesses 

3. Medical history and/or records

4. Confirmation that there was a patient-medical professional relationship in place

A medical malpractice lawyer can help you gather all the necessary information needed to substantiate your claim.

Finish filing your suit within the necessary timeline

Like many forms of law, there is a statute of limitations for when a medical malpractice lawsuit must be filed. This is meant to provide you with the appropriate window of time to determine the validity of your case, reach out through the proper channels, and gather evidence. If you do not make your claim within this time limit, there’s a possibility you will lose your right to compensation altogether.

Find a medical malpractice lawyer

Medical malpractice lawyers—sometimes known as medical negligence lawyers—specialize in this particular section of the law. These cases can often involve complex medical situations that require both an extensive understanding of criminal law and a basic understanding of medical practices.

Whenever you’re looking to file a medical malpractice lawsuit, it’s important to have the right representation and expertise on your side.

Outline any clear breaches of duty

This includes presenting or demonstrating any physical injuries you incurred directly from the actions of a medical practitioner. In some cases, these injuries may be easier to show than others, such as a medical utensil being left inside the patient. 

Other scenarios, like suffering an infection or receiving a misdiagnosis, may be more difficult to prove.

Be open to the possibility of settling outside court

Compensation is often offered before you even enter the courtroom. A medical malpractice lawyer can help negotiate an agreement on your behalf that satisfies both parties. This is a good option to consider, especially with the length of time and money that can be required for standard lawsuit proceedings.

What is the time limit for filing a medical malpractice lawsuit? 

The general statute of limitations for a medical malpractice lawsuit is two years from the date of discovery. This means a claim must be made by the second anniversary of when you first became aware there was a problem.  

It’s important to keep in mind that the official date of discovery may be adjusted based on two factors:

When you become aware that an injury/damages occurred, if it occurred due to a specific act or admission, and who caused the injury or damages.

When a reasonable person ought to have known these things. 

Depending on which of these situations is deemed to be true will determine if your date of discovery is earlier or later than originally estimated. 

There are some exceptions to the statute of limitations, including minors and anyone who could not initially start a claim. Also, after a certain period—typically, 15 years from the initial incident—no claim can be made, even if discovery did not occur until after this point.

A medical malpractice lawyer in Toronto can help you navigate this process and provide the necessary support when validating the discovery period.

What are the chances of a medical malpractice lawsuit going to trial?

Although the majority of medical malpractice lawsuits are resolved outside court through private mitigation, there are a few reasons why a claim may end up going to trial. These include situations where:

Neither party can agree on who is liable. If an agreement on who is responsible for the injury/damages cannot be made, and neither side takes responsibility, then there are very few options beyond going to court. 

An agreed-upon compensation amount cannot be found. A trial may be an option if an acceptable compensation value cannot be negotiated. This is sometimes due to an unwillingness to negotiate, one party asking for an excessive amount, or the claimant feeling they are entitled to more than what is initially offered.

The claim turns into a full suit. The person making the claim may decide to sue the medical professionals in question outright and let the court—a judge or jury—determine the appropriate outcome.  

The less complex a medical malpractice case is, the higher your odds are of settling outside the court.

What are the prerequisites for filing a medical malpractice lawsuit?  

To establish a medical malpractice lawsuit, four main factors must be proven first:

1. A relationship existed between the claimant—or who the claim is being made on behalf of—and the medical professional in question. 

2. Demonstrate that the medical professional in question acted negligently when providing or administering care.

3. Prove that the negligent act directly caused any injuries or damages suffered. 

4. Outline any immediate or future losses that only happened as a result of the negligent act.

Gathering evidence to help support your claim is essential when starting the filing process. Anything from proof of lost wages, and medical bills, as well as expert witness testimony, can begin to establish the validity of your medical malpractice lawsuit.

How can a medical malpractice lawyer assist you?

Medical malpractice lawyers specialize in the unique processes and operations required in these types of claims. They know how to navigate the intricate and often complex elements of the medical field, ensuring you will be well-represented the entire time.