A medical malpractice claim is a civil lawsuit against a doctor, hospital, or other medical professional.
The purpose of the lawsuit is usually to collect financial damages for neglectful behavior. Negligence or carelessness could include the administration of improper drugs in doses that were too strong or too weak, lack of proper hygiene while providing medical treatment, incorrect diagnosis based on the information obtained from physical examinations and testing procedures, etc.
Here are the five requirements for a medical malpractice claim
- Actual Medical Malpractice
The first is a requirement that there was indeed negligence, carelessness, or incompetence which caused injury to the patient. In other words, the plaintiff (the injured person) must prove that it wasn’t simply a coincidence that he got sick or injured after being treated by the defendant (the doctor). Rather, the patient must prove that his doctor did not provide appropriate care and it caused injury to him.
- Is the Claim Filed Within a Year of the Incident
A lawsuit has to be filed within one year of the incident. In some states, a longer statute of limitations may apply. For instance, in California, the statute of limitations is three years from injury or death and four years from personal injury. To be more specific, cases involving less severe injuries (like dislocations) have shorter statutes, while cases involving injuries that cause extensive damage to body systems and organs are usually subject to much longer statutes.
- Was the Medical Professional Named as a Defendant in the Case
This is probably the most important requirement. It ensures that it is impossible for a plaintiff to file one lawsuit against multiple doctors, none of whom will be liable for his injuries. Therefore, if the plaintiff only seeks monetary damages from the defendant who caused the injury, he must be able to name the specific doctor responsible for his injuries. A lawyer for medical malpractice can advise the plaintiff on how to name responsible doctors.
- Did the Plaintiff Have Legal Capacity to Sue?
If the injured person was under 18 years old when he/she was injured, you cannot sue unless he or she has “legitimate claims of right against an adult” and not just a child’s “legal” claims. This requirement is usually satisfied when the adult who is responsible for the child is also named as a defendant in the lawsuit.
- Were Any Documents Filed With The Court?
The last requirement states that you have to file a document called a summons and complaint with the court clerk’s office. This must be done within an additional 30 days after filing your complaint with the court clerk. If you do not do that, your lawsuit will be dismissed as “abandoned. Similarly, if the plaintiff fails to file documents called an answer, he or she will also be dismissed as “abandoned”. An attorney will review these documents and is also required to sign as a witness in the case.
The physician’s answer must be verified within 30 days after service of the summons and complaint. If the defendant does not do so, your lawsuit becomes “deemed withdrawn.
After the verified answer is filed, the plaintiff has to file a counter-affidavit within 20 days. A counter affidavit may be a sworn written statement which refutes or denies all or part of the defendant’s answer.