How To Sue A Hospital For Malpractice | AllLaw

If you've been injured while receiving medical treatment in a hospital, you may be able to sue the hospital for medical malpractice. Hospitals are often on the legal hook when their employees provide substandard care that harms patients. Here are the steps to take when you're thinking about filing a civil lawsuit against a hospital for malpractice.

In This Article

• 1. Take Action Before The Statute of Limitations Deadline Passes
• 2. Talk to a Medical Malpractice Attorney
• 3. Figure Out Whether a Hospital Employee or an Independent Contractor Was Negligent.
• 4. Get Your Medical Records
• 5. Calculate Your Damages
• 6. Decide Who to Sue
• 7. Comply With All Pre-Filing Requirements
• 8. Draft and File a Complaint

1. Take Action Before The Statute of Limitations Deadline Passes

One of the biggest mistakes a malpractice victim (the "plaintiff") can make is waiting too long to file a medical malpractice lawsuit in court. Each state sets a filing deadline —called the "statute of limitation"—that requires plaintiffs to promptly file malpractice lawsuits. Time limits vary by state, but they can be as short as one year from the date the malpractice occurred or was discovered.

Malpractice plaintiffs have to jump through a few more hoops than plaintiffs in most common kinds of personal injury cases, which makes it even more critical for malpractice plaintiffs to act fast. Judges have no choice but to dismiss lawsuits that are filed beyond the statute of limitations deadline.

2. Talk to a Medical Malpractice Attorney

A medical malpractice case isn't the kind of legal action you want to try to file without a lawyer. Malpractice cases are complex from a legal, medical, and procedural standpoint. You'll need a firm grasp of the legal and medical concepts that apply to your case, the ability to follow court rules and procedures, and the capacity to find and hire the right expert medical witness.

Medical malpractice lawyers typically offer free initial consultations. Most rely on contingency fee agreements. Under this kind of fee arrangement, if you win or settle your case, your lawyer takes a portion of the award (usually 33% to 40%). If you lose your case, you don't owe the lawyer a fee. Win or lose, you may be on the hook for some costs and expenses.

3. Figure Out Whether a Hospital Employee or an Independent Contractor Was Negligent.

Just because you were the victim of medical negligence at a hospital, doesn't mean that the facility itself is legally responsible (liable). Under a legal theory called "respondeat superior," a hospital is liable for the actions of its employees, but not necessarily independent contractors. Most nurses, medical technicians, and support staff are hospital employees, but some doctors aren't. Non-employee doctors are classified as independent contractors.

Learn more about when you can sue a hospital for medical malpractice.

4. Get Your Medical Records

Medical records play a key role in malpractice lawsuits. Your medical records contain the details of your medical treatment and your injuries, which will be the main focus of your lawsuit.

Hospitals typically must keep patients' medical records for at least a few years after treatment. You can request a copy of your medical records or authorize the release of your medical records to your attorney or medical expert. Hospitals may charge a fee for copying expenses.

5. Calculate Your Damages

At some point, the hospital might make an offer to settle the case. So, it is important for you to understand the value of the case. You should consider all possible losses and harm stemming from the malpractice, including the cost of medical treatment you'll need because of the error, lost income and diminished earning capacity, pain and suffering, loss of enjoyment of life (the decreased value of a person's life as a result of the injury measured by changes in lifestyle, like the loss of the ability to enjoy sports, walk, or play with children), and loss of consortium (losses suffered by family members as a result of the injury).

Learn more about how to calculate your personal injury settlement value.

6. Decide Who to Sue

Before you can file a lawsuit, you have to decide who you're going to sue. Who is legally responsible for the medical error? Was it a doctor? If so, was the doctor an employee of the hospital or an independent contractor? Was a nurse or an ambulance service negligent? Cast a wide net. You can file a medical malpractice lawsuit against more than one party. It's critical that all potentially-responsible parties (the "defendants") be named in the lawsuit because you may not be able to add a party later.

7. Comply With All Pre-Filing Requirements

Many states require patients to jump through a few hoops before filing medical malpractice lawsuits. These pre-filing requirements vary by state. You may have to have an expert review your records and submit an affidavit of merit stating that you have a viable case. In some states, you may have to submit a claim to a medical review board before you can file a lawsuit in court, or agree to some form of pre-lawsuit alternative dispute resolution (ADR).

Check the laws and filing requirements in your state, or speak with an experienced medical malpractice attorney.

Medical Malpractice Claims Against a Federal Hospital

If you plan to sue a hospital run by the federal government, like a U.S. Department of Veterans Affairs (VA) hospital, you'll have to comply with all state medical malpractice laws and the Federal Torts Claim Act (FTCA). The FTCA requires you to file what's called an "administrative claim" with the federal agency you intend to sue, typically within 6 months of the alleged malpractice. The federal agency then has six months to investigate and respond to the claim.

In some cases, the federal agency may admit your claim and offer to pay you some or all of the money damages you requested. Or, the federal agency may deny your claim or offer you less than the amount you think your claim is worth. After the federal agency rules on your claim, you have six months to file a federal lawsuit. The six-month window opens on the date your claim was denied. If you miss the window to file your claim, your lawsuit will almost certainly be dismissed.

The easiest way to file an FTCA administrative claim is to use the federal government's Standard Form 95 (SF 95). You can find the form online or request a copy from the federal agency that caused you harm.

8. Draft and File a Complaint

A complaint is a document that starts a medical malpractice lawsuit. It lets the hospital and anyone else you're suing know that you intend to seek compensation for your injuries and losses. The complaint typically identifies:

• your injuries
• the facts surrounding your injuries
• who you are suing
• the legal basis for your lawsuit, and
• the amount of compensation (damages) you are seeking.

Learn more about how to file a medical malpractice case.