What is necessary to bring a medical malpractice lawsuit?

UPDATED: Aug 25, 2011

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What is necessary to bring a medical malpractice lawsuit?

I recently went to the ER. I was never seen by a doctor, only a nurse. I was never put into a room; I was taken care of in the hallway. I was given pain meds and sent on my way. According to my family doctor, who I saw one day after, I should have been admitted into the ER; I should have been given a blood test due to the symptoms I was having. If I was given the blood test they would have realized that my levels were over the chart and could have resulted in heart attack or death. My body was releasing toxins into my body and was damaging my kidney.

Asked on August 25, 2011 Texas


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care in this case that a reasonable hospital emergency room would have exercised under the same or similar circumstances) to prevent foreseeable injury.  You should obtain your medical records from the hospital/emergency room.  Your family doctor's statements in a medical report provide evidence of the malpractice that occurred at the emergency room/hospital where you did not receive the blood test which would have prevented your kidney damage.

In order to prove negligence, you need to prove duty (due care discussed above), breach of duty (failure to exercise due care by not being given the blood test), actual cause, proximate cause, and damages.  Actual cause means but for not being given the blood test, would you have suffered kidney damage?  If the answer is no which appears to be the case, you have established actual cause.  Proximate cause means were there any unforeseeable intervening events which would relieve the emergency room/hospital of liability?  If the answer is no, you have established proximate cause.  Damages means the amount of compensation you are seeking in your lawsuit for negligence against the hospital/emergency room.  Your damages should include the medical bills, compensation for pain and suffering and documentation of any wage loss.  Compensation for the medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of your injury and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bills. 

It may be possible to settle your case with the hospital's insurance carrier.  Your claim filed with the insurance company would include your medical bills, medical reports and documentation of any wage loss.  If you are dissatisfied with settlement offers from the insurance company, reject the settlement offers and file your lawsuit for negligence against the hospital/emergency room.  If the case is settled with the insurance company, no lawsuit is filed.  If the case is NOT settled with the insurance company, you will need to file your lawsuit for negligence prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

It would be advisable to speak with a medical malpractice attorney.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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