Member Directory
Member Directory

Understanding Medical Malpractice

According to Hopkins Medicine, medical mistakes kill approximately 250,000 people each year. In fact, medical malpractice is the third leading cause of death in the United States, directly following cancer and heart disease. 

Medical malpractice is defined as any act or omission by a doctor during the treatment of a client that differs from accepted norms of practice (also known as negligence) in the medical community and causes an injury to the client. The negligence could be a result of an error during medical diagnosis, treatment, and/or aftercare. Medical malpractice is a specific type of tort law that handles professional negligence and is a common type of personal injury lawsuit

Basic Requirements for a Medical Malpractice Lawsuit

In order to prove that medical malpractice took place, you need to be able to show the following things:

A Doctor-Patient Relationship Existed

You must have the ability to prove that you, the victim, had a doctor-patient relationship with the physician that you are taking legal action against. This means that you hired the physician, and the physician agreed to be hired by you. For instance, you cannot sue a physician that you overheard giving medical recommendations. If a doctor started seeing and treating you, it should be pretty simple to establish that a doctor-patient relationship existed. Questions usually develop on whether or not the doctor-patient relationship existed when a consulting physician did not personally treat you. 

The Doctor Acted Negligently

Sometimes people are merely unhappy with their treatment or results; however, that does not mean a physician is responsible for medical malpractice. The acting physician should have been negligent in relation to your diagnosis or treatment. In order to sue for medical malpractice, you must prove that the doctor caused you harm in a manner that a competent doctor would have under the very same circumstances. A physician’s care does not have to be the best possible, but it does have to be “reasonably skillful and careful.” Whether a doctor was reasonably skillful and careful is generally at the core of a medical malpractice suit. Almost every U.S. state requires that the client provide a medical expert to speak on the appropriate medical standard of care and reveal precisely how the medical professional differed from that standard.

The Doctor's Negligence Caused the Injury

A common concern is whether or not what the physician did, negligent or not, directly caused the injury. This is because many malpractice cases involve victims that were sick or injured before a medical professional’s care. For instance, if a patient passes away after treatment for lung cancer, and the doctor acted negligently, it may be tough to prove that the doctor’s negligence was the cause of death instead of cancer itself. A patient must prove that it is “more likely than not” that the doctor’s incompetence was the cause of the injury. It is typically required of a patient to have a medical expert testify that the doctor’s negligence caused the injury.

The Injury Led to Specific Damages

Even when it is clear that the doctor performed below the expected standard of care, you are not able to sue for malpractice if you did not suffer any injuries. Below are some examples of the types of harm a patient can sue for:

  • Mental suffering
  • Additional medical bills
  • Lost work and lost earning capacity
  • Physical pain 

Types of Medical Malpractice Cases

Of all of the thousands of medical errors that are made in a given year, the most common preventable types of medical mistakes include:

  1. Misdiagnosis: Failure to correctly diagnose is a widespread medical mistake. The most common misdiagnosed conditions are heart attack and cancer. Misdiagnosis of life-threatening conditions can be extremely devastating and cause severe injuries.
  2. Birth injuries: Many medical malpractice claims are against Gynecologists for childbirth-related medical mistakes. Shoulder dystocia or other nerve damage, spinal cord injuries, cerebral palsy, and cephalohematoma are only a handful of the most common birth injuries that could have been caused by medical error.
  3. Surgical errors: Some of the most common surgical errors that occur are tools or sponges left in the body after surgery, operation on the wrong side of the body, or performance done on the wrong patient. 
  4. Failure to treat: This typically occurs when a doctor correctly diagnoses a patient but does nothing to treat it in accordance with the acceptable level of care for that condition. Discharging a patient too quickly or failure to follow up care can worsen conditions and result in injury.
  5. Medication errors: Doctors sometimes prescribe incorrect medication or incorrect dosage and administration of medication. Other medication errors can include prescribing a patient a drug that can cause them harm when taken.

Medical Malpractice Law

In the United States, medical malpractice law has traditionally been classified under the authority of the individual states (not the federal government) compared to many other countries. In order to win any monetary compensation for an injury related to medical negligence, one must have the ability to show that the subpar medical care was the reason they were injured. 

Statute of Limitations

The claim of medical negligence must be filed within a specific amount of time, known as the “statute of limitations.” This time frame differs from state to state. Medical malpractice statutes of limitations can be complicated because they often consist of more than one deadline.

The Standard Deadline 

For example, in the state of Alabama, the first part of the statute of limitations is referred to as the standard deadline, which gives a victim of medical malpractice a certain number of years to file a claim after the supposed wrongdoing occurred. The standard deadline for Alabama is two years, indicating that if you do not file a medical malpractice claim within two years of your malpractice occurrence, you lose all rights to sue for medical malpractice.

 The Discovery Rule

However, there are exceptions to this rule made by other parts of the statute of limitations. The second part of the statute of limitations is called the discovery rule. This rule is an exception to the standard deadline in instances where the victim might not have been able to sensibly learn that they had a medical malpractice case. The discovery rule in the state of Alabama states, “if the injured person did not discover the medical malpractice claim and could not reasonably have discovered the claim within the two-year statute of limitations, the claim may be commenced within six months from the date of discovery of the malpractice or the date of discovery of facts which would have lead to such discovery. Whichever is earlier.” 

Deadline for Minors

The third part of the statute of limitations is the deadline for minors or their parents or guardians to file a medical malpractice claim. In Alabama, there is an appointed deadline only for minor children under the age of four at the time of the misconduct. If a victim of malpractice is under the age of four, the child has until their eighth birthday to file a claim.

The Statute of Repose

The fourth part of the statute of limitations is the statute of repose. It is essential to note that not all states have this part in a medical malpractice case, and not all states call them a statute of repose. A statute of repose implements an absolute deadline no matter when the victim becomes aware of the malpractice. In Alabama, the statute of repose specifies that a medical malpractice claim cannot start more than four years after the supposed act of malpractice, except for minor children who are subject to the deadline for minors outlined above. 

Additional Exceptions

Alabama has other exceptions to the statute of limitations of a medical malpractice case. For example, the statute of limitations might be extended if the accused fraudulently concealed the malpractice, if the accused departed the state after committing the misconduct, or if the victim of malpractice was mentally ill.

As soon as a client proves that the neglect led to their injuries, the court will calculate the monetary damages that will be paid in compensation. The damages that will be taken into account are both economic and non-economic. Economic damages are lost income, medical costs, and the cost of future treatment, and non-economic damages are typically pain and suffering. Doctors who practice in the United States normally carry medical malpractice insurance coverage to protect themselves in the event that medical negligence or accidental injury occurs. In many cases, this kind of insurance is required as a condition of hospital privileges or employment with a medical group.

How to File a Claim

As stated above, the measure of whether or not a doctor acted negligently, or failed to provide adequate care, depends on whether the patient would have gotten the very same treatment of care from another doctor under the same circumstances. The majority of doctors intend to operate at the highest standard of care for every client they see; however, there are times when things can go seriously wrong. 

If you or a loved one has experienced less than adequate medical care that has ended in damage or injury, you more than likely will be entitled to medical malpractice recovery.

It is important to understand what to expect when your medical malpractice claim begins and that the requirements vary depending on the state the malpractice occurred in. Below you will find how to file a medical malpractice claim and a few considerations to keep in mind when filing. 

Consult a Medical Malpractice Attorney As Soon As Possible

Although particular injuries can be dealt with without professional assistance, a medical malpractice claim is not one of them. 

To start, you must submit your case within the statute of limitations. If you fail to do so by the time the deadline passes, sadly, you will not be able to sue for this injury ever again. Despite the fact that there are exceptions to the statute of limitations in many states, it is better to file your claim sooner rather than later so you do not miss the deadline. If you do not know what your state's statute of limitations is, a skilled medical malpractice attorney will be familiar with the deadline in your state and will be able to do everything possible to act in accordance with it.

Second, and depending on where your case is going to be filed, compliance with pre-lawsuit requirements such as medical expert testimonies, review boards, and notices of intent to file a claim will decide whether your case will be allowed to start. An attorney that routinely handles medical malpractice cases will have the experience, resources, and procedural understanding to guarantee that your claim has the best possible chance of success.

Collect Copies of Your Medical Records

Medical records are typically the best proof in any medical malpractice case. Because of privacy laws that have been set in place, you must sign a release form enabling your attorneys, in addition to the defendant's attorneys, to acquire copies of any of your medical records needed for your case. It is a good idea to get a head start on this process by requesting copies of your medical records as soon as you believe that you might have a medical malpractice case.

The faster you deliver your medical records to your attorney, the faster your attorney will be able to start analyzing your case in-depth. This will enable them to solicit medical opinions from physicians, consisting of doctors, nurses, and other professionals that might serve as medical expert witnesses on your case. It is possible that after a comprehensive review of your medical records, an attorney will advise you not to file a lawsuit or suggest that your damages were not the result of a doctor's negligence. The sooner medical and legal professionals can examine your records, the sooner you will have the ability to decide if your case has a good chance of success. 

Inform Medical Professionals and Insurers

Whether officially or informally, it is sometimes helpful to give notice of a potential suit to medical professionals and their insurance companies. In certain states, alerting healthcare specialists and their insurance companies is necessary to take the matter to court. Nevertheless, this type of notice will trigger insurance protection and internal review in all cases, so you may find that you can reach an agreeable settlement prior to filing a claim. The support of an experienced attorney is important as they will function as the liaison between you and the claims specialists who may or may not decide to take advantage of you in your case. Even though this is a mere negotiating tactic, it is no the less very undesirable. When it boils down to it, having an experienced attorney provide the appropriate parties with a notice of intent to file a suit is the best course of action.

Follow Pre-Suit Requirements

As mentioned before, most states have a systemized pre-filing requirement for medical malpractice cases. Pre-suit requirements were made to make litigation more efficient, motivate settlement, and help weed out any insignificant claims. Most pre-suit guidelines require some sort of expert support, either in the form of an “affidavit of merit” that discusses the appropriate medical standard of care that was supposedly violated and any resulting injuries. 

If you fail to follow these pre-suit requirements, your case can be dismissed altogether; however, you will normally get a chance to come into compliance before you lose your right to a legal solution for good.

Filing a Medical Malpractice Complaint

The last and final step in starting a medical malpractice case is actually drafting and filing a complaint in civil court. This complaint is the official statement of the allegations against the defendant physician and/or medical facility. Once this complaint is filed, a lawsuit will begin. The filing of this lawsuit will start the clock on when the case might go to trial. Each state's pre-trial policies differ, but it usually takes between a year and a half to 3 years after a claim is filed for a medical malpractice case to go to trial.

The Offer of Proof or an Affidavit of Merit is Filed

In a lot of states, the victim's legal representative is required to send an "Offer of Proof or an Affidavit of Merit" when filing the lawsuit and prior to any pretrial investigation occurring. The function of the Offer of Proof or an Affidavit of Merit is to make sure that the medical malpractice lawsuit is legitimate. Depending upon the state you filed your case's laws, the attorney is required to submit a written opinion of negligence from a medical professional who has evaluated the victim's records or an affidavit from the attorney mentioning that the attorney talked through the case with a doctor who thinks the victim has a legitimate medical malpractice case. In some circumstances, states need a pre-lawsuit panel to consider the victim's allegations before submitting a claim.


When all pre-lawsuit policies are satisfied, litigation starts and the parties conduct "discovery," a procedure where each party examines the other's legal claims and defenses. They send questions and document requests to the other and take depositions of all proper parties and witnesses in the case, typically starting with the victim and defendant.

This process lasts a year or more, depending entirely on the court's deadlines, and typically requires each party to go back to court to get the judge's help. It is typical for one or both parties to be unhappy with the other party's response to the concerns or document requests and results in filing a motion to compel further responses. The judge will hear each side's argument and make a decision. This often happens multiple times during the lawsuit.

Mediation and Negotiation

When the discovery period ends, the attorneys will start talking about the settlement. Sometimes attorneys can settle a case amongst themselves, but other times, it will go to mediation, where clients and attorneys go in front of an unbiased mediator to help settle the case.


Generally speaking, mediation will work, but when both sides are too far apart, the case will be scheduled for trial. It is crucial to keep in mind that just because a lawsuit is scheduled for trial does not necessarily mean the trial will happen on the specified date. Many trials are delayed and rescheduled due to the court’s schedule and delays in the case’s progress.   

Find an Attorney

The National Trial Lawyers stands as an esteemed, exclusive association comprising top-tier trial attorneys nationwide. Whether you require a Civil Plaintiff Lawyer or a Criminal Defense Lawyer in your state, our network ensures access to premier legal expertise tailored to your needs.
Find Attorney

Read More Legal News

© Copyright 2022, All Rights Reserved | National Trial Lawyers
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram