How to Start a Medical Malpractice Lawsuit
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Once a patient or their family has determined that medical negligence resulted in an injury or a wrongful death, then pursuing a medical malpractice lawsuit may be necessary to help with the associated financial and emotional burden.
The first step in starting a medical malpractice lawsuit is finding and retaining a lawyer with experience in litigating medical malpractice cases.
Finding and Hiring a Lawyer
In order for a patient and/or their loved ones to have the best chance at successfully recovering an award or settlement amount for their damages, it is critical that they retain and be represented by an attorney with experience in medical malpractice law in the state where the medical malpractice occurred.
Meeting with Medical Malpractice Lawyers
Most medical malpractice lawyers will offer potential clients a free consultation where they can discuss their case and receive professional legal advice and guidance regarding their options for getting money to cover all the current and future costs, as well as money for the pain and suffering they have experienced due to the negligent medical care and resulting damages.
It is a good idea to contact at least two or three medical malpractice attorneys and meet with them to find out which is the best fit. Beginning a lawyer search on the internet is a good start, because you can contact several local medical malpractice lawyers easily via email to start the process.
What to Ask a Lawyer
There are several questions that victims and family member should ask each lawyer they meet. These are some of the most important:
How many cases of medical malpractice have you handled?
Of those, how many were successful?
Do you have a medical doctor readily available to get an opinion regarding my case?
Have you gone to trial in a medical malpractice lawsuit?
Finding a medical malpractice lawyer with experience in medical malpractice trial is important because it shows the defending lawyers that the attorney is willing to take the case to trial if necessary, so they will be more likely to offer a large settlement amount to avoid having to go to court.
Sign the Fee Agreement and Retainer
Once an attorney has been selected, it is important to establish the fee agreement early on. Almost all cases of medical malpractice are taken on a contingency fee basis, so the victim and family will not need to pay any money up front for legal services.
What should be agreed upon in writing are the details of the contingency fee. Usually, a sliding scale of between 33% and 50% is normal. The scale depends on how the lawsuit plays out, how long it will take and whether or not it will require a trial or appeal.
State Laws on Attorney Fees
Some states place a cap on attorneys fees, usually based on the award or settlement amount. For example, there may be a cap of 40% on the first $500,000, then a cap of 33% on the next $500,000 and 25% on any recovery above $1 million.
Investigation and Discovery
Once an attorney has been chosen, and the retainer agreement signed, he or she will begin the process of investigating the details of the case. This includes obtaining all records from the hospital or doctors office and meeting with witnesses to get all the facts necessary to prosecute the case.
Medical Expert Opinion
The lawyer will consult with a medical expert to determine how, exactly, the negligence occurred and how it contributed to the patients injury or wrongful death. This same medical expert will also act as an expert witness in court, and testify that the medical treatment performed did not meet the accepted standard of care.
File the Lawsuit
Once an attorney has obtained all the evidence necessary to prepare and prosecute the case, the lawsuit will be filed. Concurrently, notice of the suit will be sent to the doctor or hospital being sued, and at that point the defendants insurance company will have their medical malpractice defense attorneys begin their own investigation.
Once the suit has been filed and the defense attorneys have investigated and decided on their position, the settlement negotiation process will begin. This can take anywhere from a month or two to several months, depending on the merit of the case and the amount of money involved.