Deciding whether to file a medical malpractice claim involves considering a number of factors. First, you need to consider whether you will be able to prove the required elements of your claim. Second, you need to consider the potential damages available to you. Third, you need to determine whether you want to undertake a potentially costly and time-consuming legal battle. Generally, the larger your potential damages and the more egregious the malpractice, the more sense it makes to file a medical malpractice claim.
Medical malpractice claims in the United States are covered under tort law and are considered a form of negligence. All doctors are held to a reasonable doctor standard under the rules. This means that the doctor's standard of care must be at least as good as the standard of care a reasonably qualified physician would give. If it is not, he breaches his legal duty and he can potentially be held legally liable.
As a negligence action, there are several things you need to prove to get damages for a medical malpractice claim. First you need to prove that the doctor breached the standard of care and that the medical help he provided you — either in the form of a diagnosis or treatment — was below what the law requires. This means you can recover if he botched a procedure or treatment, but also if he didn't diagnose something he should have or if he misdiagnosed you.
The next thing you need to prove is that the doctor's actions actually were the cause of the damage or injury. For example, if you are dying of cancer, you can't sue your doctor just because the treatment he provides doesn't work to cure you. You would have to prove that the doctor was negligent or careless in the way he treated you or diagnosed you, and that the negligence or carelessness made your cancer worse or caused you additional pain or harm or made it more likely you would die from your cancer.
Proving each of these elements can be difficult, and this needs to be considered when determining if you should file a medical malpractice claim. You will need to hire expert witnesses and you will need to present a great deal of convincing medical evidence to the judge or jury. The case — if it does not settle — can take a long time to move through the courts; however, most medical malpractice cases settle.
The next consideration is both the potential damages and cost. Generally, you are entitled to recover monetary damages for your actual losses — medical bills to fix what the doctor did or money you lost if you couldn't go to work. You may also be entitled to pain and suffering, emotional distress, and in some cases punitive damages arising from the medical malpractice claim. This should be considered, as should your attorney's fee structure; most attorneys work on a contingent fee basis and so do not get paid unless you win your case.
