Medical malpractice occurs when a healthcare professional breaches the standard of care when providing treatment to a patient.
Although there are many causes that people can handle themselves, medical malpractice is NOT one of them. There are many rules and guidelines that need to be followed and you will need an attorney as soon as you realize that you may have a case on your hands.
Here are the steps to claiming medical malpractice:
1. Find out if you really have a valid medical malpractice claim. In order to be able to file a lawsuit for medical malpractice, there are a few requirements that you will need to meet. You must prove that you and your healthcare provider had a doctor-patient relationship and that there was an agreement that the provider would be working with you. You must also prove that the healthcare professional was negligent and acted in a way that opposes what any other competent healthcare professional would have done, given the same situation. Finally, you must prove that this negligence and malpractice inflicted injury to you in some way or another.
2. The strongest kind of evidence in these cases are medical records. You want to obtain your medical records as soon as you realize that there was a negligent act. Your lawyer will want these records as soon as possible, so it is strongly recommended to obtain a copy of these before you even consult a lawyer. They will use it to analyze your case, inquire opinions from related medial experts, and to build your case.
3. Once you assess your situation and find that it meets those three (3) requirements, then you possibly have a medical malpractice case. This is when you need to consult a lawyer as soon as possible. This is crucial with regards to the statue of limitations. Gather any information or other records that you may have regarding your situation.
In California, generally, the expiration date to file a claim is one year after the discovery of the act that caused the injury or up to three years from the date that injury occurred. However, there are exceptions (children, cancer, ect…) to this one year rule so you should consult an attorney before assuming that your are ineligible.
Make sure you keep careful records of everything your doctor told you and of any side effects or problems you experienced. You should also keep records of any money you spent or lost as a result of the mistake.
4. After going over your case, your attorney will notify any insurance or medical facilities of your intent to sue. They must get a notice at least ninety (90) days before a suit is filed. He/she will act as you in the sense that you will not have to do any direct conversating or rebutting with them. Once the defending parties receive this notice of intent to sue, they usually try to handle it out of court by offering a settlement. If you are not represented, they will try to take advantage of that fact. However, if represented, your lawyer will act as your safeguard between you and the bullying insurance companies.
5. At this point, your lawyer will go over any “pre-suit notice requirements” that are mandatory before one can file a claim. Pre-suit notice requirements were put in place by the government to try to minimize the amount of frivolous claims placed. This refers to cases that can easily be settled out of court, or cases where there were obvious damages cause by the doctor, which would make it near impossible for the doctor support their case even if it went to court. One of these requirements include the above mentioned requirement to provide notice to the party you are suing.
6. If there is no way to come to an agreement regarding the settlement, or if you are not happy with just a settlement, this is where making a claim would come in. Your lawyer would draft and file a complaint for you. Once this complaint is filed, then the lawsuit begins.
Having supporting documents and qualifying professional expert witnesses is ample for having a strong case. The steps involved in filing a medical malpractice case can be complicated and overwhelming. Retaining the services of an experienced, professional attorney like myself should be your first step in any medical malpractice action. You’ve already been through enough…so why deal with the hassle of a lawsuit by yourself? Contact my office at 619- 238-1905 for a free consultation with me.
