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Medical mistakes happen. And every year, according to Justice.org, as many as 98,000 people are killed and many more injured due to medical errors. If this happens to you or a loved one, you may not know where to turn.
If you want to recover damages for your injury or a loved one’s death at the hands of a negligent medical professional, you’ll have to take up your case in court. Here are the steps you should take.
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Figure out whether you have grounds
Medical malpractice lawsuits are generally based on the charge of negligence. To be classified as “negligence,” an action by a medical professional would have to meet all of these criteria:
- The duty of care test. The medical professional should owe you a “duty of care,” meaning to be in a position where he or she must take care of you and protect your health. For example, only your physician owes you a duty of care—the physician who shares his office can’t be held liable.
- A breach of duty of care. A breach in the “duty of care” requirement involves providing care that is substandard according to the expectation of that medical professional’s community.
- Cause of harm. The breach in question must have directly caused some injury or bodily harm. The negligence must be the “proximate cause,” or the primary cause, of the injury or harm.
Figure out who to sue
It’s not always straightforward. Hospitals are usually responsible for all employee actions—so you’d sue the hospital for the actions of a nurse, lab technician, or paramedic, for example. Doctors, however, aren’t always classified as “hospital employees.” Technically, a hospital has to tell you up front if your doctor can’t be defined as an employee of the hospital, and this is usually stated in your entry paperwork.
If the doctor who caused your injury is not classified as a hospital employee, you may be able to sue the doctor—but not the hospital. The hospital, however, would have more resources to pay for your damages—and is thus a better target for a lawsuit than an individual.
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Then, figure out where to sue
If you are a resident of the same state where the hospital and all parties involved are located, then you can file your suit in either your county of residence or the hospital’s. But if you live in a different state, you may be able to file state in your home county—or not, depending on your state’s jurisdiction.
Talk to a lawyer
While hiring a lawyer isn’t absolutely necessary in order to plead your case, your chances of winning are much higher if you do—and bear in mind that the other side will probably have a lawyer. Even if you don’t end up hiring a lawyer, consulting with one could be valuable for your case—as the lawyer will be able to give you a good idea of whether you have a fair chance of winning in court.
There are many different factors that could complicate a malpractice case—including whether or not your doctor can be considered a “hospital employee,” whether your hospital was able to inform you of that employee status, and your state’s jurisdiction. Because of this, it can be difficult to manage a case yourself—particularly if you are dealing with a injury yourself or the injury or death of a loved one as a result of the negligent care. But suing can be worth it. Be sure to talk to a lawyer to determine the special needs of your individual case.