Getting sued for medical malpractice is one of the most traumatic events of a physician’s career. The Doctor’s Company offers expert guidance on what to do if a claim is filed against you.
How to Sue a Doctor
You may want to sue if your doctor was negligent in providing medical care. People are often reluctant to sue a doctor for medical negligence because they aren’t aware that they can, or they don’t want to sue for damages. If you were injured as the result of negligent medical care, a lawsuit may provide you with compensation for your injuries.
Build Your Case
1 Document your injury. If you are suffering from pain, a loss of mobility, or reduced vision or hearing, then you will want to document it. The amount of compensation you can win at trial depends on the extent of your injuries. It is helpful to document these injuries as soon as possible after treatment. If you have bruising, cuts, or infections, take photographs. This evidence will be useful at trial since it shows your condition immediately after receiving treatment from the physician. By the time you reach trial you might be better, but you can still be compensated for the injury your doctor caused. Keep a journal of what you are feeling. Pain may be difficult to document with photographs since it is not visible. Write down how intense the pain is, its duration, and the day and time in which it occurs. Preserve all prescription pill bottles as well as prescription information for any medication that you take. Documenting your injury is the most important thing you can do to build a strong medical malpractice case.
2 Request your medical records. Federal law entitles you to get copies of the majority of your medical records, including medical tests, lab results, billing information and more, according to health information site Very Well. Care providers are allowed to charge fees for providing your records, but cannot withhold your records just because you did not pay for the medical services you received; if you pay a fee to get your records, providers also cannot apply that fee to your unpaid healthcare bill and then deny you your records, according to Health and Human Services. That said, while you can access most of your records, there are some limitations: For example, you cannot obtain information that was compiled for use in a lawsuit; records which could put you in danger; or notes taken during psychotherapy.
3 Determine who to sue. When suing a doctor for malpractice, you can sue the doctor independently. In some cases, you can also sue the hospital where you received the negligent treatment. If you were injured during surgery, you also may sue anyone who attended to you during surgery, such as doctors and nurses. Write down where you received the negligent treatment: in a hospital? in the doctor’s office? at your home? Then list all the staff who attended to you.
4 Act quickly. Every state has a statute of limitations, which requires that you bring your lawsuit within a certain amount of time. Limitations periods vary by state. New Jersey has a 2-year statute of limitations. Washington has a 3-year limitations period. The limitations period may be extended if the injury you suffered remained latent. For example, if you had surgery 5 years ago but complications did not develop until 5 years later, the 2-year statute of limitations will not begin running until you discovered the injury. This is called the “discovery rule.” States will not extend the limitations period indefinitely. Regardless of when the injury is discovered, some states will bar a lawsuit if too much time has passed. Montana, for example, will bar a medical malpractice claim after 5 years, even if the injury could not have been discovered until after the passage of 5 years.
5 Follow medical advice. One of the most common defenses to a medical malpractice claim is to allege that the plaintiff failed to mitigate her pain and suffering. Therefore, you should follow medical advice to the letter. If you have been told to stay off your feet, you shouldn’t be hiking up a mountainside or playing outside with your children. Failure to mitigate is not a complete bar to recovery for medical malpractice. However, it may make you less sympathetic in the eyes of the jury and could reduce the amount of compensation you receive.