7 Tips for Pursuing a Medical Malpractice Injury Claim

Find out how to get the compensation you deserve with these tips to help you pursue a successful medical malpractice claim.

Even the finest doctors can make terrible mistakes. Some health care providers and facilities cause harm to their patients through carelessness or greed. If you or a loved one have been the victim of medical malpractice, you have the right to pursue compensation for your injuries and suffering.

Some patients develop complications or die even when they get the best medical care available. Not every bad patient outcome is caused by medical malpractice.

A legal definition of medical malpractice:

“An action or omission by a healthcare provider, which falls well below the acceptable standard of care that other healthcare providers would have given under the same circumstances, resulting in injury to the patient.”

The “acceptable standard of care” depends on the circumstances. For example, the standard of care you can expect for a complicated medical issue is different for a rural medical clinic than for a major regional medical center.

Medical malpractice cases are complex, expensive, and time-consuming. You cannot successfully pursue a medical malpractice claim without an experienced personal injury attorney.

Doctors and healthcare facilities spend thousands of dollars each year for medical malpractice insurance. Malpractice insurers have armies of aggressive lawyers and specialists who will forcefully defend any claims against their insureds.

Take a look at our collection of tips you can use to identify potential malpractice and work with your attorney to get the compensation you deserve for your injuries.

Tip 1: Know What Counts as Medical Malpractice

Every medical malpractice case is unique. However, there are two elements necessary to establish a valid claim:

  1. You or a family member received treatment well below the medical standard of care
  2. The provider’s negligence caused a verifiable, serious injury that would not otherwise have occurred

A medical care provider is negligent when they do something wrong or fail to do what any reasonable provider would do in the same circumstances.

The most common medical errors arise from:

  • Failure to Diagnose: When a doctor fails to recognize a dangerous condition, like cancer, or makes an incorrect diagnosis, they may be responsible for your damages
  • Improper Treatment: Providers who prescribe the wrong medications or treatments, or order the wrong dosages of medications may be liable for malpractice
  • Failure to Warn: Patients who undergo treatments without warnings about possible side-effects may have a cause of action if they were harmed and would not have taken the treatment if they’d known it could happen

Malpractice can be caused by any healthcare provider, including:

Protect your right to good care. It’s worth talking to a personal injury attorney when you believe you’ve received sub-standard health care from any provider.

Tip 2: Don’t Confuse Product Liability with Malpractice

Injuries caused by a defective medical device are handled differently than injuries caused by malpractice.

A medical device is any product created to assist healthcare providers in treating patients. Medical devices can be used for diagnosis, treatment, or prevention of injuries and diseases.

If a defective medical device was determined to be inherently dangerous or unsafe for use as intended, you might have grounds for a product liability case against the manufacturer.

Common medical devices include:

  • Pacemakers
  • Defibrillators
  • Heart Stents
  • Breast Implants
  • Spinal Cord Stimulators
  • Insulin Pumps
  • Artificial Knee or Hip Joints

Similar to defective medical claims, injuries caused by dangerous drugs can entitle you to seek compensation from the manufacturer.

Medical device manufacturers are international corporations with large legal departments ready to fight any liability claims. You will need a good attorney to fight for your right to compensation.

Depending on your circumstances, a viable option for pursuing compensation might be to participate in a class-action lawsuit against the manufacturer of dangerous drugs or medical devices.

Tip 3: Beware of the Statute of Limitations

Every jurisdiction has legal statutes that set deadlines for settling injury claims or filing a lawsuit against the negligent party. If you miss the deadline, you forfeit your right to seek compensation for your injuries or the death of a loved one.

It’s important to know that hospitals and related facilities run by government agencies, like a county hospital, are often protected by deadlines as short as a few months after the injury occurred. To make matters worse, the process for filing injury claims against a government-run institution is often complicated and confusing.

Don’t risk losing your right to compensation. Consult an attorney as soon as you suspect medical malpractice has occurred.

Tip 4: Consult the Right Kind of Attorney

Medical malpractice claims are complicated, expensive, and might take years to resolve. With the right kind of attorney, a strong medical malpractice case can result in a settlement or jury verdict worth hundreds of thousands, or even millions of dollars.

Many medical malpractice claims turn into a “battle of the experts” after a lawsuit is filed.

Your attorney will need to hire a variety of medical and financial experts to win your case.

For example, medical experts will be necessary to:

  • Review your medical records
  • Establish the appropriate standard of care for your situation
  • Identify how your provider failed to meet the standard of care
  • Opine on the scope and permanence of the injuries you suffered from the malpractice

Financial experts will be needed to:

  • Calculate future lost wages
  • Determine the future value of your medical care
  • Evaluate the financial impact on your family

Look for an experienced malpractice attorney who can afford to advance the funds needed to cover the cost of court fees, discovery costs, medical experts, accountants, and more.

Tip 5: Keep Track of Your Medical History

Your injury attorney will use the litigation “discovery” process to collect your relevant medical records using official requests to the negligent doctor or facility, backed up by subpoenas as needed.

The attorney will also want to collect your medical records leading up to the malpractice occurrence, even from providers who are not named in your lawsuit.

As your representative, your attorney has the right to ask for your records on your behalf. However, since most facilities are fearful of violating HIPAA rules, you may be asked to sign a release form to help move the process along.

It will help your attorney if you can provide a list of every medical provider you saw, and the dates of your medical appointments, hospital admissions, and diagnostic tests.

The more evidence and documentation you can give to your attorney, the easier it will be for your attorney to evaluate your case.

Keep track of paperwork related to your case, such as:

  • Prescriptions
  • Test results
  • Written instructions given before medical tests
  • Hospital or emergency room discharge papers
  • Any correspondence with your medical provider

Many medical groups and regional healthcare systems provide patients with access to online digital “medical charts” that contain dates and details of your medical history. You can print most entries or take screen prints to give to your attorney.

Tip 6: Document How Your Life Has Changed

When your world has been rocked by the wrongful death of a family member, or you’re dealing with the harsh reality of injuries caused by a medical error, you’re also entitled to substantial compensation for the extreme emotional distress you must endure.

To the extent that you are able, it can be very helpful to your case to keep notes about your experiences in a diary or journal.

Write down everything you remember about your general health and symptoms leading up to the malpractice event.

Following the medical error, use dated entries to describe the harm you suffered, such as:

  • Symptoms
  • Pain levels
  • Further treatments
  • Discovery of the error
  • Nightmares
  • Physical changes and limitations
  • The impact upon your activities of daily living

You deserve to be compensated for every aspect of your life that was affected by your injuries, from your inability to care for your pets, to shame and distress because you need help in the bathroom.

Tip 7: Consider Filing a Medical Board Complaint

Some medical mistakes don’t rise to the level of actionable “malpractice” when they only cause minor injuries or are caught before resulting in injuries.

If you were prescribed an antibiotic despite a known allergy, you probably wouldn’t get far with a medical malpractice case if the only harm you suffered was an itchy rash for a few days.

Likewise, if the pharmacist filled your prescription with the wrong medication, and you didn’t take it because it didn’t look right, you suffered no physical harm.

Whether or not you have the grounds to pursue a medical malpractice case, you have the right to file a formal complaint against a negligent physician with the appropriate medical board.

Here’s where you can find medical board contact information for your state.

Following your complaint, the board will investigate the doctor.  You won’t get any compensation from a medical board complaint, but physicians who are found to be negligent can face heavy fines or have their medical license revoked.

Visitor Questions on Tips for Medical Malpractice Claims

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>