If you’re considering filing a medical malpractice claim following a medical error, you may be able to file a claim on your own in some cases. You may think, “I can file a medical malpractice claim myself,” but doing so often isn’t in your best interests. Instead, it’s typically ideal to file a claim and build a case with a medical malpractice lawyer who has experience in these matters and can calculate the total amount of compensation you’re eligible to recover.
Medical malpractice cases are frequently complex and involve many influencing elements that can affect settlement amounts and determine whether insurers approve or deny a claim. Understanding what to expect will help you decide whether to file a medical malpractice claim with or without an attorney.
How to File a Medical Malpractice Claim Yourself
If you choose to represent yourself in your medical malpractice case, the steps involved may appear superficially simple, but these cases tend to be complicated and require you to take many steps to recover compensation.
Some steps you would need to take to file a claim on your own include:
Notify Your Medical Provider
Before filing a medical malpractice claim, it’s important to reach out to the medical provider you intend to file against. Your doctor may be able to explain the mistake and determine whether there’s a chance to remedy the situation.
Speak With the Medical Licensing Board Behind Your Provider
If you want to proceed with a malpractice claim after speaking with your medical provider, the next step would entail contacting the licensing board responsible for providing professionals in your provider’s field with their licenses. The licensing board may be able to recommend the next steps to take in your case and either somehow punish or warn the medical provider.
Request a Medical Assessment
Before filing a medical malpractice suit or claim, most states will also require you to get a certificate of merit based on a medical assessment from another healthcare provider or another professional in the same field. The assessment will involve reviewing the details of your medical records and determining whether negligence on the part of a doctor or another professional led to injuries or wrongful death. You would then need to file this certificate of merit.
Negotiate a Settlement With Insurers
With your certificate of merit, you may begin negotiating with the designated medical malpractice insurance carrier. Keep in mind that insurers will seek any valid reason they can find to reduce your settlement or deny your claim, and you may make a mistake with a statement or another interaction that compromises your case.
The Challenges of Filing a Medical Malpractice Claim Yourself
If you want to file a malpractice suit without a lawyer, the process could quickly become daunting and challenging, even if you have a medical malpractice case that’s valid. There are several items to keep in mind if you’re considering going it alone, such as:
Not Every Medical Mistake Constitutes Malpractice
Sometimes medical professionals make mistakes that don’t make them liable for medical malpractice. For example, a doctor may do everything in his or her power to meet the highest standards of care and commit an error that many other experts in the same position with the same level of experience might still make.
Whether a medical error counts as medical malpractice will depend on the standard of care in place. Specifically, a doctor may have breached his or her duty of care when other skilled and competent professionals at the same level wouldn’t have made the same mistake.
Like other types of negligence cases, the burden of proof falls on the claimant, i.e. the injured patient or his or her family. It will be up to these individuals to show how a doctor:
- Owed a duty of care by establishing a patient-doctor relationship
- Breached that duty of care through negligence
- Committed negligence resulting in injuries or wrongful death
- Caused specific damages as a result of injuries or wrongful death
You Will Have Multiple Responsibilities
When representing yourself in a medical malpractice case, you will also need to perform multiple duties to build your case, which can be time-consuming when you may need to spend more time recovering.
For example, you would be responsible for negotiating with insurers, meeting all court deadlines, collecting sufficient evidence to build your case, and connecting with witnesses. If your case goes to trial, this would require more duties, including making compelling arguments in court and effectively presenting evidence.
You Will Have a Limited Time to File Your Claim
It’s also important to know the statute of limitations pertaining to your case. This statute differs from state to state and dictates how much time you have to file a claim or lawsuit against medical providers. This statute of limitations can be two or more years, but that time can quickly pass, leaving you without options to recover compensation if you fail to file in time. Also, you should file as soon as possible to be on your way to compensation to cover mounting medical bills and other expenses.
You May Not Have the Knowledge Needed to Navigate the Legal Process
When filing a medical malpractice lawsuit, you must be able to keep up with the defendant’s attorneys when going through the legal process. If you don’t know how this process works and what it specifically involves, you could make a misstep that hurts your case. You may not be able to properly prepare for the pretrial and trial process, for instance. Further, you may also be uncertain of how malpractice law works and how to effectively prove negligence.
You May Need to Adhere to Causation and Affidavit Requirements
Depending on the state where your case takes place, you may need to obtain a causation letter (i.e. the written opinion of a medical professional) establishing that the defendant in your case has:
- Breached his or her duty of care
- Caused injuries or wrongful death through this breach of duty
In addition to this causation letter, you will need to file an affidavit stating that you have this causation letter with the court when filing your medical malpractice suit.
It’s also a challenge to obtain the causation letter, as it must meet specific qualifying criteria. It must come from a medical provider who is legally qualified, and it must also be in the correct format at the time of filing. In addition, the medical provider whose opinion you seek may charge a large sum of money for their opinion.
The Benefits of Hiring a Lawyer to File Your Medical Malpractice Case
With so many potential challenges that can arise during the claims or legal process with a medical malpractice case, it’s often best to hire an attorney to help you. Experienced medical malpractice lawyers can handle every aspect of your case to help you succeed. Some specific elements that a medical malpractice attorney may help with include the following:
Negotiating With Insurers
Medical malpractice attorneys can help negotiate malpractice claims with insurance companies, which is often difficult for claimants to do alone. Attorneys will be able to prepare statements, calculate the total amount of compensation you’re eligible to recover, and continue negotiating with insurers to recover a fair settlement. They understand the tactics insurers use during negotiations and can counter these with years of knowledge and experience handling these claims.
Collecting All Relevant Evidence
Another aspect of your case that an attorney can help with is gathering evidence to support your claim. There are many types of evidence that may help increase your case’s chances of success, including medical records, x-rays and other imaging, doctors’ notes, lab reports, and witness testimony from other medical professionals and staff. Collecting all of this evidence on your own can take a lot of time and diligence, but an attorney in this practice area will know how to collect all pertinent evidence to build your case.
Taking Your Case to Court
If needed, medical malpractice lawyers go to court to represent their clients if the case goes to trial. While most medical malpractice cases settle out of court, some may wind up in front of a judge or jury. A knowledgeable attorney will be able to handle the legal process in these instances, with the ability to make opening statements, present evidence and arguments, and effectively counter the defense team. Attorneys will also have general knowledge of the legal process and ensure you’re able to navigate it as smoothly as possible.
While you might think, “I can file a medical malpractice claim myself,” you’re putting your case at risk if you don’t have sufficient experience with these types of cases and medical malpractice law. By working with the right attorney, you’ll be able to increase your chances of succeeding and getting the full compensation you deserve following a medical mistake.