Medical Negligence – What to Expect When Suing

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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: Jul 15, 2021

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Prosecuting a case of medical negligence can be a daunting task. While any civil suit—that is, a suit that does not arise from criminal activity, and that seeks monetary damages as opposed to the imposition of a punishment—can be full of twists, turns and pitfalls, medical negligence plaintiffs must often deal with additional rules and requirements that are not present in a civil suit otherwise. 

Failure to strictly adhere to the rules governing medical negligence cases in a specific jurisdiction can result in dismissal of the case, regardless of its actual merit. What follows are examples of what a person can expect to deal with in a medical negligence suit.

Filing a Notice of Intent to Bring a Lawsuit (NOI)

One area in which medical negligence cases differ from others is in their timing requirements. While all civil cases generally have statutes of limitations (a period of time in which a case must be filed), medical negligence suits often also have what are referred to as notice provisions

Many jurisdictions require that a medical negligence plaintiff, prior to filing an actual lawsuit, file a Notice of Intent to Bring a Lawsuit (NOI). The NOI serves to put the defendant and their insurance carriers on notice that litigation will be commencing, and serves to kickstart the exchange of information between the parties. The NOI requirement generally involves having an expert—usually a doctor that is board certified in the same discipline as the potential defendant doctor—certify that, in their opinion, medical negligence occurred and that the suit has merit.

Statutes of limitations can vary by jurisdiction, but it is safe to assume that you have between two and three years to commence the lawsuit process. Some states have a two-year statute of limitations; some go as long as six years. But in every state, a claim will eventually expire.

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A Malpractice Attorney Is Imperative

To successfully navigate these initial requirements, the assistance of a medical negligence attorney is essential. As such, it is important that an injured party seek out a seasoned malpractie attorney as soon as possible. The window of opportunity to file a suit begins to close even as it becomes clear that negligence may have occurred. 

Medical negligence attorneys normally work on a contingency-fee basis. This means a client and his or her attorney agree that, if the case is successful, the attorney will take a percentage of any monetary award granted. Generally, the attorney portion is one-third of the total award, plus any costs and fees the attorney paid upfront on behalf of the client. In some jurisdictions, there is a limit on how much an attorney may receive as a contingency fee.

Medical Expert Witnesses – Requirements & Cost

While a contingency fee arrangement may seem to offer little risk  to a potential plaintiff, this may not be the case. Medical negligence cases are expensive. Simple tasks like obtaining copies of relevant medical records can cost thousand of dollars. So, too, will expert witnesses.

Any medical negligence attorney will be quick to explain that without expert testimony, as case will fail. In fact, most jurisdictions require experts as a matter of law. Doctors consider their time to be very valuable, and they charge a steep premium to act as experts. They normally charge between $200 and $500 per hour to review records, and even more to give deposition testimony or appear in court. It is not uncommon for expert fees to stray into five-figure territory. The more complex the case, the more time and money is spent on experts. 

Experienced, credible experts make the best impression on judges, juries and opposing parties. Their opinions can mean the difference between success and failure, so medical negligence attorneys are careful in choosing. Should a case be lost, the experts will still need to be paid, and an attorney would be well within his or her rights to attempt to collect the costs of obtaining experts from the client.

Medical Negligence Cases Are High Risk

Many states have severely limited the ability to recover damages in medical negligence cases, which can hinder the ability to find an attorney. Medical negligence attorneys may be picky regarding the cases they agree to take on; this is because these types of cases present a financial risk to the attorney, not just the plaintiff. Fronting costs, dedicating time and office resources cost money, and there is no guarantee of success. A person may go to two or three attorneys before finding one willing to take their case. 

In today’s legal landscape, victory in a medical negligence case is far from guaranteed. Cases rarely go to trial. The vast majority are settled out of court, but a very large number are simply dismissed for legal, procedural or factual reasons. Dismissal is a real possibility, and can lead to further expenses in the form of lengthy appeals. So if an attorney does not think a case has a legitimate chance of settling for a large amount or prevailing at trial, he or she may be loathe to accept that case. In many areas around the country, statutory reforms have stacked the deck against medical negligence plaintiffs.

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