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Medical Malpractice Lawsuit Filing Requirements

If you’ve been injured by a health care provider’s mistake -- anything from a misdiagnosis to a harmful error during a hands-on procedure -- you might be thinking about filing a medical malpractice lawsuit in order to get fair compensation for your losses. If so, it’s always helpful to get an initial understanding of the legal and procedural landscape you’ll face.

In every state, a medical malpractice lawsuit is started when the initial "complaint" is filed in the civil court system. The complaint, which lays out the injured patient's allegations of wrongdoing on the part of an individual medical professional, or a facility such as a hospital, is also "served" (along with a "summons") on any individual or organization named as a "defendant" in the lawsuit.

But in most states, it’s not enough for the injured patient to simply file the complaint; certain other procedural steps must also be followed, and these are typically unique to medical malpractice lawsuits (if you’re filing a personal injury lawsuit after a car accident, for example, these extra steps won't apply).

Many of these laws have been passed as part of controversial "tort reform" efforts, which aim to weed out frivolous medical malpractice claims by placing procedural safeguards (some might call them "roadblocks") in the path of potential plaintiffs. The idea is to ensure that a medical malpractice lawsuit is valid before a health care provider is forced to mount a costly defense, so that the skyrocketing costs of professional liability insurance aren't passed on to patients and health insurers.

So, what kind of procedural "hoops" must a medical malpractice plaintiff jump through? Different states require different actions. For example:

  • California requires 90 days’ prior notice to any health care provider you're intending to sue for medical malpractice.
  • Florida medical malpractice plaintiffs must serve a notice of claim on each health care provider to be named in a medical malpractice lawsuit.
  • Massachusetts medical malpractice plaintiffs must submit an "offer of proof" to a three-personal tribunal, who will determine whether the plaintiff's evidence raises a "legitimate question" of the defendant health care provider's liability.
  • New York medical malpractice plaintiffs must file a certificate of merit alongside the complaint.
  • Ohio requires the filing of an affidavit of merit by a qualified expert for most medical malpractice lawsuits.

Other states (including Indiana and Maine) require that a medical malpractice complaint be submitted to a so-called "screening panel" before the dispute can be taken to court. And keep in mind that some states (including Oregon) have no significant pre-suit requirements for medical malpractice lawsuits.

Of course, having an understanding of the requirements for filing a medical malpractice lawsuit in your state is one thing; complying with those requirements in a thorough and optimal fashion is another, and it can be crucial to the success or failure of your case. If you think you have a viable claim for medical malpractice against a doctor or other care provider, it may be time to put your case in the hands of an experienced medical malpractice attorney.

From Lawyers  By David Goguen, J.D., University of San Francisco School of Law

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