How to know if You Have a Medical Malpractice Case

If you sustain an injury due to neglect or inadequate care by a health care professional, you may have grounds for a medical malpractice claim. Simply sustaining an injury during medical treatment does not necessarily mean you have a valid malpractice claim. Like all civil lawsuits, the burden of proving that you are entitled to compensation lies with you (the plaintiff).

You must prove by a preponderance of the evidence the four elements of a medical malpractice claim or lawsuit. These elements are the physician-patient relationship, negligence, causation, and damages. You will need to assemble your medical records and work closely with a medical malpractice lawyer to prove these elements.

General Requirements for a Medical Malpractice Claim

For your medical malpractice claim to be viable, it must meet the following general requirements:

Existence of a Doctor-Patient Relationship

You must demonstrate that a physician-patient relationship existed between you and the potentially liable doctor. This element may seem pretty straightforward, but it is sometimes hard to prove. You cannot, for instance, file a medical malpractice claim against a doctor you overheard offering advice to other guests at a cocktail party.

A doctor must start seeing you and providing medical treatment to you for a physician-patient relationship to exist. If the doctor just consulted on your case but did not provide any medical treatment directly, the required relationship may fail to exist.

Negligence on the Doctor’s Part

You must prove that the doctor acted negligently. In some cases, medical injuries may happen due to known risks associated with the procedure, the presence of unknown factors, or other events outside the doctor’s control. In other cases, negligence is obvious. The surgeon may, for instance, perform the wrong surgery on a patient or leave a surgical tool inside the patient’s body.

You can sometimes prove negligence by demonstrating that the doctor breached, broke, or ignored the standard of care. The medical standard of care describes the level of prudence and caution a health care provider in a similar circumstance would have exercised. You may need an expert witness to testify in your case. The expert witness will define the reasonable medical standard of care and how the defendant departed from that standard.


When medical malpractice happens, your health care provider will only be legally responsible for injuries or illnesses directly related to his or her negligence or deviation from the accepted medical standard of care. You will not qualify to pursue compensation for injuries or illnesses arising from a pre-existing health problem. An expert witness can help you link your injuries or illnesses to your doctor’s negligence.


You must have suffered harm because of your doctor’s negligence to be eligible for compensation. Common types of harm in medical malpractice claims include physical pain, mental agony, additional medical expenses, permanent disfigurement or disability, lost wages, and lost earning potential.

At this point, you may be wondering, “how hard is it to win a medical malpractice case?” A medical malpractice case is fairly hard to win because you have the burden of proof. You will stand a better chance of winning such a case if you have solid evidence to prove your claim and an aggressive medical malpractice attorney on your side.

Special Medical Malpractice Requirements

Most states have special regulations and guidelines for medical malpractice claims. You should understand your state’s regulations and follow them prudently.

Filing of Medical Malpractice Cases Must Happen Right After the Injury

Most states require you to file a medical malpractice claim immediately after the incident – usually from six months to two years. This period is known as the statute of limitations. If you fail to file a claim within the stipulated period, the court will throw out your case irrespective of the evidence.

In Illinois, you must bring a claim within two years from the date you recognized or should have recognized your medical malpractice injury. This date must be within four years from the date the medical event or error occurred.

A Special Malpractice Review Panel

Several states require you to file the claim with a malpractice review panel first. The review panel will listen to your arguments, examine the evidence and testimony from expert witnesses, and determine whether malpractice has happened.

Keep in mind that the review panel’s decision does not substitute a medical malpractice suit. The review panel cannot award damages, either. It is, however, a compulsory step in your medical malpractice case. The review panel’s findings are admissible in court.

Special Notice Requirements

Some states require you to send a malpractice claim notice to your doctor before filing anything. This notice is simply a basic description of your claim.

Expert Testimony Requirements

Expert testimony is a fundamental part of your medical malpractice case. You may need to submit an expert affidavit and your claim to the malpractice review panel. An expert witness, especially a qualified medical practitioner, is often needed at trial.

Signs of Medical Malpractice

If your medical care has caused additional injuries or exacerbated your illness, you might wonder, “how do I know if I have a medical malpractice case?” The following are the most common signs of medical malpractice:

The Prescribed Treatment Is Not Working

If your condition is not improving even after strictly following your prescribed treatment, you might have been misdiagnosed. A misdiagnosis increases your risk of getting sicker or sustaining additional injuries.

In such a situation, you are the victim. You will be receiving treatment for a non-existing condition while an existing one goes untreated. Your health may worsen while you receive treatment for an illness you do not have. You may also suffer adverse effects and potentially develop additional injuries for exposing your body to medications it never required.

Surgical Errors

Although surgical procedures carry many risks, some of them are preventable. Carelessly placing a patient on the surgical table, using improperly sterilized surgical tools, or leaving surgical tools inside the patient are common surgical errors that can be avoided. These errors indicate negligence on the part of the surgeon and surgical staff.

Equipment Failures

If something went wrong with the medical equipment during your treatment, you might wonder, “are equipment failures cause for medical malpractice claims?” If equipment fails during treatment due to lack of regular monitoring and cleaning, health care providers may be liable. Failing to use medical equipment correctly can also result in a medical malpractice claim.

The Treatment Plan Does Not Suit Your Condition

If the treatment plan is costly and more involving than what you require, you may have grounds for a medical malpractice lawsuit against your treating physician or medical institution. Your doctor should start with less invasive treatment before moving to invasive tests and procedures.

If you suspect your treating physician is doing more than necessary, seek a second opinion from a qualified medical practitioner. This action will significantly boost your claim.

Liable Parties for Medical Malpractice

Now that you know the signs of medical malpractice, you might be asking, “who is responsible for medical malpractice?” A wide range of different parties may be held accountable for medical malpractice. Health care providers like doctors, surgeons, nurses, nurse aides, surgeons, and other medical practitioners may all be legally responsible if they offer substandard medical care and treatment that leaves the patient with injuries.

Health care facilities may be responsible for substandard care offered to the patient. These facilities can also be legally responsible for negligent recruitment and retention of employees, poorly or insufficiently trained employees, or harm that stems from understaffing. A medical malpractice attorney can investigate your case and thoroughly review all available evidence, including your medical records, to identify potentially liable parties for your medical malpractice injuries.


FindLaw Network

$2,300,000 – Brain Injury
$650,000 – Motor Vehicle Accident
$800,000 – Construction Injury
$570,000 – Medical Malpractice

$4,300,000 – Medical Malpractice
$4,100,000 – Construction
$4,000,000 – Medical Malpractice
$3,000,000 – Vehicle Accident

$950,000 – Birth Injury Malpractice
$5,860,000 Medical Malpractice – Wrongful Death
$1,800,000 – Product Liability
$4,000,000 – Medical Malpractice

$3,000,000 – Vehicle Accident
$950,000 – Birth Injury Malpractice
$7,500,000 – Premises Liability

Watch Our Videos:

Learn about our firm and how our expertise in personal injury cases will ensure that you receive the best possible outcome to your case.