Most medical malpractice lawsuits include claims that that the doctor or other health care provider committed the tort of negligence. Thus, medical malpractice claims are similar to ordinary negligence in that comparable elements apply to the cause of action. Statutes passed in almost all U.S. states in recent decades, however, have made suing health care providers for medical negligence much more complex than bringing other types of tort lawsuits.
Medical Malpractice Legislation
Laws passed in many U.S. jurisdictions impose various constraints on the plaintiff wishing to file a medical negligence lawsuit against a doctor or other health care provider. Such constraints may include:
- Pre-suit screening requirements.
- Restrictions on the time within which a case may be filed.
- Caps on monetary recovery and attorney fees.
These provisions were enacted to cure perceived abuses in the filing of frivolous medical malpractice lawsuits.
Pre-Suit Screening Requirements for Medical Malpractice
Medical negligence laws in some states require that the plaintiff, through his or her attorney, engage in various types of pre-suit screening to ensure that the plaintiff's claim is viable. In some states, for example, there are laws that require the plaintiff's attorney to conduct an investigation into the plaintiff's claim and to file an affidavit declaring that there are grounds for a good faith belief that medical negligence was committed.
According to Beth Walston-Dunham, author of Medical Malpractice Law & Litigation, some states mandate that the plaintiff file an affidavit from another health care professional stating that, in his or her professional opinion, malpractice has occurred. This requirement typically means that, prior to filing suit, the plaintiff must hire an expert to review all of the medical records and to reach an expert conclusion about the merits of the case before the case may be filed.
Statutes of Limitation for Filing a Medical Malpractice Lawsuit
With any tort claim, the plaintiff has a limited time after the occurrence of the alleged tort in which to file a lawsuit. Many states follow the "discovery rule" for medical malpractice lawsuits. Under the discovery rule, the statute of limitation begins to run from the time the plaintiff knew or should have known of the alleged malpractice, with the time limit being two years in many jurisdictions. Special rules may also apply to children claiming medical negligence.
Caps on Damages for Medical Negligence
As Walston-Dunham explains, many states have placed various types of limitations on the types of personal injury compensation available to plaintiffs in medical malpractice lawsuits. Some states place a cap on the entire amount the plaintiff may recover. Other states place a limit on the amount recoverable for such intangibles as pain and suffering. Many states place a limit on the amount or percentage of fees a plaintiff's attorney may charge for pursuing a medical malpractice case.
Medical Malpractice Attorneys
Most U.S. jurisdictions have implemented statutory schemes that govern the filing of a medical malpractice lawsuit. Medical malpractice law is largely governed by state law, and the laws vary from state to state. Because of the complexities involved in bringing a medical negligence case, one should seek the assistance of an experienced medical malpractice lawyer as quickly as possible after discovering that malpractice may have occurred.
Source: Walston-Dunham, Beth. Medical Malpractice Law & Litigation. Clifton Park, N.Y.: Thompson Delmar, 2006.
Additional Resource: How to Hire an Attorney
Disclaimer: This article is in no way intended as legal advice. For help with specific issues involving medical malpractice, one should contact a licensed attorney in one's local area.
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