Lady Justice holding scales with text "Win Your Malpractice Lawsuit"

If you need to know exactly what the medical malpractice lawsuit process looks like, you’re in the right place.

Because we’re going to cover the process as well as:

1. How to report medical malpractice.

2. The difference between adverse events and malpractice.

3. Criteria to choose the best lawyer for your lawsuit.

4. 4 of the most common never events.

5. And more.

Let’s jump right in!

The Medical Malpractice Lawsuit Process

Road through forest, representing the journey.

The lawsuit process takes place in 5 stages:

1. The investigation.

2. Filing suit.

3. Pretrial discovery.

4. Negotiations and settlement.

5. Trial prep and the trial itself.

Before any of this, you’ll need a lawyer. You’ll want to report malpractice too, but we’ll focus on the lawsuit process first.

Step 1: The Investigation

This step is pretty simple for you, because we (or your lawyers) are going to do all the work. In this stage, we’re going to find the answer to two simple questions:

1. Negligence: Was the doctor or medical professional negligent in the eyes of the law?

2. Injury: What was the injury you received because of their negligent care?

If it truly is a matter of medical malpractice, we can move forward to pursue the medical malpractice case. How?

By getting the medical records reviewed by an expert in that field.

Here’s how to get a valuable testimony from a physician who knows the area of medicine involved in your case:

Make sure your attorney has contacts in the medical community. This will help identify qualified expert witnesses.

Understand that a determination can only be made by a doctor who practices in that area of medicine. In most cases anyway.

Many states (including Texas) require an expert’s medical opinion. It’s mandatory to prosecute a medical malpractice lawsuit.

Pro tip: A lot of people ask “how long do I have to file a medical malpractice case?” This varies, but we can tell you this — in Texas, it’s almost always 2 years from the date of your injury. Read more about malpractice time limits.


Step 2: Filing Suit

Once we (or your lawyer) receive the opinion of our medical expert, we can prep and file a lawsuit on your behalf. We file suit and serve copies of the papers on the defendants.

Their lawyers file Responsive Pleadings, which is called Grounds of Defense, in response. Now we’re getting somewhere.


Step 3: Pretrial Discovery

This is divided into three parts:

1. Written Discovery: Each party sends written questions, or Interrogatories to their adversary. They send a request for relevant documents as well. Both sides must provide written answers and hand over all copies of documents relevant to the case.

2. Depositions of the Parties and Lay Witnesses: These are testimonies under oath, conducted outside of the courtroom. We use these depositions to assess the adversary. Like all responsible attorneys, we prep you thoroughly for this process.

3. Depositions of Expert Witnesses: Once our experts complete their opinions on the case, we tell the defense who our experts are and the details on their opinions. The defense will depose our experts, and we’ll depose theirs. In the same way you were thoroughly prepped for your deposition, the experts will be too.


Step 4: Negotiations & Settlement

Now, here’s some good news. The vast majority of medical malpractice cases never go to trial. Why?

Basically, they know they’ll lose in court, and choose to negotiate and settle instead. That means you’ll be well compensated for your injury. However, not every case settles. If your case doesn’t settle, it’s on to step 5…


Step 5: Trial Prep & Trial

If the defense refuses to give us a fair offer, our experts will testify in court. But before that, we prepare. A lot. Hours of preparation are necessary. This is to make sure our visual aids, exhibits, opening statements, closing arguments, and everything in between will set us up for success.

We hold pre-trial conferences with you, as well as our witnesses and experts, so everyone’s on the same page and knows exactly what to expect. Focus groups with people similar to the potential jurors help us understand how the jury may respond to the case. This is just a simple overview — there’s much more that goes into the process, but that’s the bird’s eye view.

By the time we get to the trial, we’re well-prepped and ready. Of course, it’s impossible to predict the outcome of the trial. But we do everything in our power to help you win ethically and within the scope of the law.

And there you have it. That’s your medical malpractice lawsuit process in a nutshell. Now that we’ve covered the procedure of your lawsuit, let’s take a step back to cover how to report medical malpractice as soon as it happens.


3 Steps to Report Medical Malpractice

Girl holding a megaphone in front of a crowd.

First, why would you want to report medical malpractice? Well, there’s a couple good reasons. First, there’s a chance that the doctor or hospital will have to stop practicing.

Second, it may force them to quickly offer you money to settle. More details on that in a moment.

Step 1: Report the Hospital or Doctor

Report medical errors as soon as possible to your state’s medical complaint board. Don’t expect a response. Also, unless multiple complaints have been issued against this hospital or doctor, they’re unlikely to do anything about it beyond filing the report and notifying the doctor and hospital of the complaint.


Step 2: Gather the Information Needed to File a Report

When filing a report, it’s not necessary for a patient to submit a medical opinion. Patients reporting medical errors aren’t doctors, and that’s okay. Instead, you should include as many details as possible about the incident. Especially firsthand information.


Step 3: See if the State Board Agrees

First, this does not initiate a medical malpractice lawsuit — Filing a report with the state board is intended to only affect the ability of the doctor or hospital to continue practicing, rather than to compensate the patient for injuries sustained.

That said, this may trigger the insurance company of the responsible parties to try to offer you money to settle.


Pro tip: If you’re offered a settlement, don’t accept it before consulting with your attorney. A good medical malpractice attorney will be able to estimate the value of your damages and determine whether or not the offer is acceptable.


The Difference Between Medical Malpractice & Adverse Events

Woman gazing over the landscape, deep in thought.

Malpractice is a fairly complex subject, with a wide variety of things to consider.

Let’s start with the difference between adverse events and medical malpractice. These have distinct differences that determine whether you have a lawsuit or not. This is how to differentiate between adverse events and malpractice.


Adverse Events Definition

Adverse events are unavoidable risks that come with specific medical procedures or treatments. They’re events that the doctor can foresee and prepare for. Here’s an example of an adverse event.

So, a patient undergoes surgery and the doctor prescribes her a new antibiotic.

She sustains an injury because of an allergic reaction. Unfortunately, she couldn’t produce medical records of the allergy that existed prior to the prescription. In this case, the doctors would not be at fault because they had no way of knowing. Adverse event.


Malpractice Definition

Medical malpractice happens when a doctor or physician fails to diligently follow standard protocol that exists to protect patients. It also includes a doctor’s failure to do something, which is negligence. Let’s take the previous example.

Say the patient was prescribed antibiotics after their surgery and still developed an allergic reaction. This would be malpractice if the allergy was stated in the patient’s medical records and the doctor failed to check before the prescription. The doctor would be at fault and the patient could file a claim of negligence against them.


Why Does it Matter?

When considering medical malpractice, you need to know the difference between adverse events and malpractice. Some procedures and prescriptions come with inherent risks.

The patients are told and have the ability to decide whether they accept the risks. In this case, this will not qualify as malpractice. If the doctor makes an error that could have been avoided, that is a claim.


How to Find the Right Lawyer for Your Medical Malpractice Lawsuit

Man searching on a laptop with hand on forehead.

Let’s start with the obvious. If a loved one is killed because of medical negligence, the next step is pretty straightforward. Prove the case. Recover compensation.

But malpractice cases are complex. Experience isn’t a luxury, it’s absolutely vital to your success.

In the case of a wrongful death due to a medical mistake, a family is often
reeling from the bad news. Often, they’ll wonder if they have a case or not. A good lawyer will help you figure that out, and help you get compensation, step by step.

The Criteria Your Lawyer & Firm Should Meet

Attorneys are people and firms are made of people. As such, none are perfect. But with that in mind, to win your case, you want to get as close to perfection as possible.

Here’s a list of criteria to help you choose the best lawyers for your malpractice lawsuit.

They have worked extensively in malpractice and can tell you if the death was purely accidental or caused by a doctor mistake.

Experienced attorneys can also put family members at ease. Because they’ve successfully held many doctors and hospitals accountable in the past.

Years of trying cases in civil court, which means your lawyers know and understand the nuances of judges and juries.

Your attorneys should meticulously prepare your case, well before the first day of a trial.

The firm you choose should ideally have a registered nurse on staff.

Well-seasoned malpractice lawyers can confidently go up against powerful defendants in a wrongful death lawsuit. These can include physicians, hospitals, nursing homes and other entities who often have considerable clout.

Last but not least. Following the loss of a loved one, family members often don’t know where to turn. By sharing what they know with experienced counsel, they
can gain a sense of purposeful direction in light of unexpected tragedy.

4 “Never Events” That Could Give Rise to Medical Malpractice Claims

Screenshot of the dictionary definition of a medical malpractice never event.

According to John Hopkins Medical Malpractice Study, an average of 4,000 never events occur each year. These events are simply unacceptable.

People injured in these cases should always seek compensation.

The most frequent never events happen during surgery. When the surgeon or their staff is negligent, they can cause irreparable harm.


Here’s 4 common never events:

1. Surgery on the Wrong Body Part 

For patients going into surgery, they expect to be treated for the appropriate appendage. If a doctor operates on your arm, when it should be your shoulder, it can lead to lasting damage.


2. Wrong Surgery 

Surgeons should double check the patient’s records and history to ensure they receive the appropriate treatment. There is no excuse for performing the wrong surgery on a patient.


3. Surgery on Wrong Patient 

Treating the wrong patient is not only inexcusable, it can cause extensive harm. A doctor needs to know the patient in order to understand their medical history. If the patient receives the wrong surgery, it can be crippling, if not fatal.


4. Leaving Foreign Object in the Body 

Many tools are used during a surgery. Things like towels, scalpels, and sponges litter the site. However, there have been instances where a surgeon stitches the body, leaving one of the objects inside the patient.


These events should never happen. If doctors and hospitals make these reckless mistakes, you can sue them to claim a large compensation.


The Role of Informed Consent in Medical Malpractice Cases

Man's hand signing agreement with pen.

There are many forms of medical malpractice. Many people associate “malpractice” with medical mistakes like surgical errors or medication errors. But there are many other forms of medical negligence that can lead to patient injuries. This includes malpractice claims that stem from situations where health care providers performed unauthorized procedures or treatment. These types of medical malpractice cases are violations of patient consent, or lack of consent claims.


Health care providers have a legal duty to provide care that meets acceptable standards of their profession. And they must meet a number of established guidelines as they do. Consent is one of the most fundamental standards in the practice of medicine; by law, medical professionals have to get the patient’s consent before they provide treatment.

Many situations and unique issues arise in medical settings. As such, there are two lawful forms of patient consent:

Informed Consent

Informed consent, or express consent, refers to a patient’s explicit acceptance of treatment. It requires a medical professional to adequately inform patients about any treatment or procedure they recommend, as well as any inherent risks. This is usually done in writing. Most surgeries, elective procedures, and other forms of non-emergency treatment should generally never happen unless a patient has been properly informed and has signed a consent form.

Implied Consent

In the absence of informed consent, there are circumstances where a patient may implicitly agree to treatment provided by a medical professional. This may involve a patient who calls and schedules an appointment with a physician, for example. Affirmative physical gestures, arriving at a pre-designated time and location for treatment, and complying with pre-surgery procedure (i.e. fasting before surgery) can be considered implicit agreement.

In emergency situations where patients can’t provide informed consent, implied consent gives medical providers the ability to provide emergency care.

Informed consent can play a critical role in medical malpractice cases. Especially when a patient doesn’t provide their informed consent to undergo a certain procedure or receive certain treatment, and then suffers harm.

Here’s some examples.


Wrong Site Surgery

Wrong site surgeries occur when a medical professional performs surgery on the wrong part of the body. For example, let’s say a patient gave their consent to have surgery on their right elbow. But the doctor performed the procedure on the left elbow. That’s wrong site surgery. When a doctor removes the wrong organ, or amputates the wrong body part, that’s wrong site surgery as well.


Wrong Patient Surgery

Another common error involving lack of informed consent and hospital negligence, is surgery performed on the wrong patient.

This can happen when a doctor performs a procedure on the wrong patient, who didn’t consent or even need that particular surgery.


Risks & Complications

In some cases, patients may suffer from treatment complications. Maybe the doctor didn’t inform them properly, or at all. Or maybe the doctor said it was less serious than it actually was. Or the treatment conflicted with the information a doctor gave them.

Informed consent requires a health care provider to adequately discuss risks and complications. The consent forms must include this. These types of claims are based on the idea that the patient would not have consented to the procedure if the doctor gave them the proper information about the risks and complications to begin with.


Evaluating the role of informed consent can be a challenging endeavor, and one that will vary from case to case. As such, lack of informed consent claims demand the attention of lawyers who have extensive insight handling medical malpractice cases and determining how health care providers failed in their duty to adequately inform patients, obtain consent, and / or provide care in accordance to acceptable standards of care.


Need to Hire a Lawyer Now?

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Trust your case to our Houston firm today. Reach out to us at (713) 489-0993.

Need a seasoned vet? Hartley Hampton has been practicing law in Houston Texas for over 35 years. Learn more about our award-winning team!


NOTES

1 Always report medical errors to your state’s medical complaint board. This process can vary from state to state, though it generally involves a form in which the complainant identifies all relevant parties and describes the mistakes that occurred and the harm that resulted. In some states, when you send a report, the doctor or hospital might not be sanctioned. You may not even be contacted about the report.

This is usually because they see the event as an isolated incident. Why? Because of the strong professional record of the party or parties in question. That said, a report is still very significant. The more complaints a doctor or hospital receives, the more likely it is for a board to sanction them.

In addition to filing a report with a state’s medical complaint board, you might also consider consumer websites. These allow them to rank the quality of care received from a doctor or hospital. That way, you notify other potential patients, which is important because state medical complaint boards aren’t usually public.