How to File a Malpractice Claim

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 18, 2021

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Malpractice lawsuits arise when a professional individual, hospital or organization makes a serious error in providing service and as a result, a client or patient suffers physical or financial harm. Most malpractice claims or lawsuits are against licensed professionals like health care providers or attorneys and the companies or organizations they work for. To make a malpractice claim, you must generally show that the action causing the error falls below a certain level of care and that you suffered an injury because of that failure.

Elements of a Malpractice Claim

A malpractice claim generally starts with some type of serious misconduct or failure on the part of a professional, and when that professional’s misconduct results in substandard levels of care, skill or diligence in the performance of duties. To decide if a professional used an adequate level of care, courts will usually compare their professional decisions and actions to those of other members of the same profession with comparable reputation. This comparison must be apples-to-apples and oranges-to-oranges. This means that you cannot call an attorney to testify against a doctor regarding the type of care he should have provided because they are two entirely different professions.

The courts will also compare similar professionals in the same geographic area or community, because the resources available may not be the same for all professions in all areas of the country. For example, a doctor in a large city with multiple hospitals that have state of the art equipment will be held to different standards than a doctor practicing in a rural area with limited medical resources.

Showing that an error occured due to substandard practices is just the first part of a malpractice claim. The next step is to show that you sustained some type of injury. The injury can be physical or monetary. In order for malpractice to be actionable, the injury, loss, or damage must be suffered by a person who retained the services of a professional, or by a person otherwise entitled to benefit from or rely upon a professional’s services. This generally means that you cannot file a malpractice claim for someone else. The exception to this rule is if you are the guardian or custodian of the person that was harmed. Similarly, if a professional’s or hospital’s conduct did not impact you, but impacted a third party, you cannot file a malpractice claim because you were not the one that suffered the injury—despite the fact that you feel the third party was wronged.

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Getting Legal Help with a Malpractice Claim

If you have sustained a loss or injury due to the negligence of a professional or hospital, you should seek the advice of a malpractice attorney who specializes in malpractice law. Because malpractice standards are influenced by geographic location, you should seek an attorney that has practiced or handled cases in the area where the malpractice occurred. Malpractice lawsuits are subject to various statutes of limitations, which means that if you do not file your complaint within a certain time period, you could be barred from asking for relief later. A prompt consultation with a malpractice attorney can help ensure that your right to file a malpractice claim is preserved.

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