To file a medical malpractice complaint, you will need to demonstrate that the healthcare provider in question did not provide you with a reasonable standard of care. Documentation like medical records can support your case, and a medical malpractice lawyer can provide information regarding your state’s specific laws on filing. In some states, an affidavit of merit also may be needed to support your case.
Consulting an Attorney
The exact requirements for filing a medical malpractice suit vary by state. Because of this, contacting a malpractice lawyer can shed light on what is required in your situation.
Different state requirements can affect:
- The length of the statute of limitations for filing suit
- When the statute of limitations begins
- Whether an affidavit of merit is required
- How long you have to file your affidavit
- What information is required in your affidavit
- What your case is worth
Statute of Limitations
Each state provides a time frame in which a victim of medical malpractice can file their complaint. Depending on the details of your case, it may be hard to determine when the malpractice actually occurred. For example, it can be hard to determine an exact date for a doctor’s failure to diagnose an illness or ailment. Again, this is where your medical malpractice attorney can provide clarity.
For a free legal consultation, call (201) 585-9111
Standard of Care
At the crux of a medical malpractice case is the standard of care. This is a legal term that refers to what a reasonable doctor would do in a similar situation. For example, a reasonable doctor would check for medication allergies before administering certain drugs to a patient. A doctor that did not do so did not meet the standard of care.
When you file a lawsuit or claim, you or your lawyer may have to present your argument about the healthcare provider’s failure to meet an acceptable standard of care.
The elements you must demonstrate include:
- The doctor had a duty to behave reasonably
- The doctor breached that duty with their actions
- You were caused injury by that breach of duty
- That injury makes the doctor liable for your losses
Forms of Medical Malpractice
Since there are a variety of reasons you may consult a doctor, medical negligence also comes in a variety of forms. The problem is so widespread, Johns Hopkins Medicine reported in 2016 that medical errors rank as the U.S.’s third leading cause of death, causing more than a quarter of a million deaths per year.
Some specific malpractice and medical errors include:
- Medication dosage errors
- Failure to diagnose
- Misdiagnosis
- Surgical mistakes
- Birth injuries
- Anesthesia errors
- Failure to treat
Any of these could be grounds for a malpractice case, provided the doctor should have known or behaved in a way that was different from what actually happened. Moreover, if your loved one was among those killed by a medical error, you may also be able to file a wrongful death lawsuit.
Evidence You Will Need
All legal complaints require evidence. In the case of your medical malpractice complaint, some evidence you will likely need includes:
- An affidavit of merit
- Expert testimony
- Medical records
Affidavit of Merit
This technical term refers to a sworn statement from an expert that supports your case of malpractice. In other words, you can consult another doctor about your case and submit their testimony as evidence that your doctor was negligent, which led to your injuries. This shows that your case has merit.
Some states require this in order to file a medical malpractice complaint, and such states include specific deadlines for submitting. New Jersey, for example, requires plaintiffs (the person filing the lawsuit) to submit an affidavit of lack of care within 60 days after the defendant (the doctor) responds to the lawsuit, according to New Jersey Revised Statutes §2A:53A-27. Your injury lawyer can help you create and file your affidavit within the appropriate time.
Expert Testimony
Even if your state does not require that you submit an affidavit of merit, many medical malpractice suits will require an expert-level understanding of health conditions in order to build evidence for your claims. Doctors and medical authorities are qualified to assess whether the physician accused of malpractice behaved reasonably in your situation. A lawyer can help you collect such testimony.
Medical Records
Your medical malpractice complaint requires context to present the full story of what led to your injury, illness, or pain. Your medical records and history can provide that crucial context, allowing both parties, a jury, and the expert witnesses to see the progression of your case and determine where the accused doctor went wrong.
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Get Help When Filing Your Complaint
You do not have to know all the requirements of a medical malpractice suit on your own. If you have remaining questions about how to file a medical malpractice complaint, call a team member from Maggiano, DiGirolamo & Lizzi P.C. today for a free consultation at (201) 585-9111.
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