Can I sue my doctor for malpractice?

In order to sue for medical malpractice, a person first has to prove that their treating physician or medical provider did something negligent during their care. While many people think this is clear, it is important to understand that only another physician who specializes in the same area of medicine can answer this question. In other words, in order to prove that your physician was negligent, you need another doctor to explain what he/she did wrong and what they should have done. In the legal world, medical negligence is defined as treatment which "departs from the standard of care"; and only another physician/nurse/medical provider who practices the type of treatment at issue can say whether your physician departed from the standard of care.

One of the most misunderstood concepts about medical malpractice is that a bad result by itself is enough to support liability for malpractice. Just because a person experiences adverse effects during treatment or even dies during surgery does not necessarily mean that the medical providers were negligent. There are bad outcomes to medical treatment and often times that has nothing to do with the standard of care provided. Accordingly, a malpractice suit can only be brought if another physician believes that the treating provider did something negligent. Indeed, in New Jersey, a person bringing a medical malpractice lawsuit has to obtain within months of starting a lawsuit an Affidavit from a qualified medical provider stating that the accused medical provider departed from the standard of care.

Similarly, a medical malpractice lawsuit can only be brought if the victim can prove that the medical provider's negligence (or departure from the standard of care) caused some injury or condition which more likely than not would not have occurred but for that negligence. This is often an area where potential malpractice claims fail because, fortunately in this day and age, the negligence of doctors is very often picked up in time to avoid permanent consequences. Often a second surgery is conducted to repair a problem caused during the first negligently surgery. Similarly, a delay in diagnosis can be harmless so long as the condition does not progress. Ironically, in such instances, attorneys who handle medical malpractice lawsuits are often left telling someone who has received negligent medical care that there is no potential for a recovery. There is a true catch-22 to walking into the office of any good personal injury or malpractice attorney) If you are signed up, it's because you have a good case and you are probably left with permanent physical disabilities. Whereas folks that are turned away are usually relatively healthy despite whatever happened to them.

The catch-22 phenomenon is most common among potential medical malpractice clients for one reason - these claims are particularly expensive in terms of the need for experts which cost money and the fact that they are more likely than your average fall down or car accident case to require a jury trial. With regard to experts' costs, physicians are not inclined to get involved in medical malpractice lawsuits and therefore to the extent that attorneys can convince them to do so, they require substantial financial compensation. It is not unusual for an expert physician to request a $5,000 retainer upfront and then charge $600-$700 per hour of their time. Moreover, multiple medical experts are usually needed in malpractice cases because of their varying specialties these days; in other words, the doctor who can testify that your treating surgeon was negligent is often not able to say that had the surgery gone right, you would not have the disabilities that resulted from the negligent surgery and/or the consequences of those disabilities.

Then there is the issue of settlement in a medical malpractice claim. In most personal injury cases, the insurance company ultimately decides when to settle with minimum input from the person or entity that was negligent and is being sued. Insurance companies make this decision based on business logic and cost/benefit considerations and often times will settle a personal injury case early on to avoid litigation costs. In medical malpractice cases, however; doctors often have the right to prevent their insurance companies from settling. This means that a doctor who takes personal offense to a malpractice claim may force a trial out of emotion or pride under circumstances in which settlement would be the reasonable course of action. While an experienced attorney should be prepared for trial in every case, going to court is much more likely when the claim is for malpractice and preparation is that much more important. Moreover, the person considering a malpractice lawsuit should anticipate that the case will be a long one likely requiring several years and likely a jury trial before coming to a conclusion.

In sum, although a medical malpractice case, when broken down fully, is essentially just another personal injury cases, there are more complicated medical issues and costs associated with proving those issues which makes these cases unique and challenging for many personal injury lawyers. As indicated above, a malpractice lawsuit is usually a long, difficult, and expensive journey; so if you have any questions regarding whether you can sue your doctor, be sure to contact an attorney who handles a lot of malpractice claims.