How Does a Medical Malpractice Lawsuit Work?

The healthcare industry is highly regulated, governed by a complex and interconnected web of laws, regulations, and guidelines. Healthcare providers and patients, therefore, often rely on legal experts for an understanding of specific healthcare issues and legal recourse.

Medical malpractice suits are one of the best-known examples of legal issues that may require the attention of health law specialists. This post examines how a medical malpractice suit works in practice, whether you’re advocating for the patient or the healthcare provider.

Understanding Medical Malpractice

How does medical malpractice work? Medical malpractice can be simply described as “negligence committed by a professional healthcare provider.”¹

Negligence, in this instance, is demonstrated by a failure to meet the legal standard of care. “Standard of care” is a legal concept (not a medical term) that can vary across jurisdictions. In the U.S., most states adhere to a national standard, typically described as “reasonable and prudent care for a patient’s needs.”²

To prove medical malpractice, one must demonstrate a breach of the standard of care. This means they need solid evidence that the provider has shown:³

• Duty: It must be demonstrated that the provider had a responsibility to meet the standard of care (i.e., that they were reasonably bound by a professional code of conduct or a reasonable expectation of meeting that standard) 
• Negligence: Failure to meet the standard of care
• Harm: Some harm (physical, emotional, or financial) must have been suffered
• Causation: It must be clear that the harm was caused by the failure to meet the standard of care (i.e., getting hit by a car after leaving the hospital probably doesn’t count, unless one can prove they were hit because of some aspect of the treatment received in the hospital)

The Pre-Litigation Phase and Filing the Complaint

The first phase of any medical malpractice suit is pre-litigation. This begins with the client approaching an attorney with the intention of filing a malpractice complaint.

The attorney will typically begin gathering information to validate the claim. This will start with collecting relevant medical records and securing expert witness reviews of those records to assess the malpractice claim.

In some jurisdictions, the plaintiff may be legally obliged to file a pre-suit notice with the healthcare provider, allowing for a statutory investigation period. Very often, attorneys will send a pre-litigation letter outlining the case in advance of filing a suit. This allows the provider to settle without going to court.⁴

If no settlement is reached or the provider indicates they’d rather go to court, the next step is to file the suit.

A lawsuit is filed as a formal complaint to a court. The defendant must also be formally served with a summons. On receipt of that summons, the defendant must file a formal, written response.⁵

The response is a critical part of the complaint process. In their response, the defendant indicates what elements of the case they dispute and the defense arguments they intend to use. This essentially lays out the parameters of the case for the court: the detailed accusation of malpractice and an equally detailed rebuttal.

Once all these elements are in place, the case can proceed to the discovery phase.

Uncovering the Evidence

Both sides in a lawsuit are obliged to share information with each other. During the discovery phase, attorneys on both sides of the suit gather information to flesh out their respective cases and review what the other side has gathered, looking for weaknesses.⁶

Witnesses and experts will be identified and interviewed in sworn, out-of-court testimony known as depositions.⁷

The discovery phase can take years, with attorneys filing formal requests to each other for the production of documents or scheduling of depositions.

At the end of the discovery phase, both sides should have a clear picture of the evidence gathered in support or rebuttal of the malpractice claim. They will also have a pretty good idea of how they intend to attack the other side’s arguments and evidence in court.

Settlement Negotiations vs. Going to Trial

Per U.S. Justice Department data, the vast majority (70+%) of lawsuits settle out of court.⁸ As experienced lawyers will tell you, both sides of a lawsuit have strong incentives to settle.⁹

First and foremost, no matter how strong you believe your case to be, a trial is an unpredictable process. A jury may not be persuaded by the case, or the plaintiff may not win the level of damages they’re seeking. Remember that malpractice has a relatively high bar—the plaintiff must prove the four essential elements to win the case. As a defendant, the same uncertainty applies, with the added consideration that a lengthy trial may cause significant reputational damage.

Both sides may also be mindful of the cost of lengthy litigation. The discovery process alone can take years to complete.

If a settlement cannot be reached, then the suit must be settled at trial. That process will commence with jury selection, in which both sides vie to select jurors they believe will be favorably (or at least fairly) disposed to their case. After jury selection, each side presents its opening arguments, outlining what they believe are the key elements of the case. Then, evidence is presented in support of both arguments.

Once all evidence is presented and attorneys for both sides have summarized their cases, the jury retires to consider its verdict. The jury announces its verdict to the court, and if it determines guilt, the trial concludes with a declaration of the damages awarded.

How Does a Malpractice Suit Affect the Doctor?

There may be significant legal settlements or penalties to pay. Additionally, the doctor may find their insurance premiums rise significantly. Medical malpractice payments are also recorded on the National Practitioner Data Bank, which is a government database of clinicians’ infractions and penalties.¹⁰

A wider impact of litigation on medicine is seen in defensive medical practices. This modern phenomenon, characterized as the wasteful habit of ordering superfluous tests and keeping overly detailed records, is often blamed on the proliferation of medical malpractice suits.¹¹

Master Complex Health Law Concepts with Hofstra Law

Medical malpractice lawsuits are just one example of the procedural intricacies and supporting conceptual frameworks that health law specialists need to understand.

Hofstra University’s Maurice A. Deane School of Law offers a series of specialized programs for lawyers and non-lawyers who want to advance their careers in health law. For licensed attorneys, the online Master of Law (LLM) in Health Law and Policy can be completed in as little as 18 months, with the focused curriculum covering the essential areas of health law subjects, from compliance to bioethics. Non-attorneys can complete the online Master of Arts in Health Law and Policy in as little as 24 months for a comprehensive understanding of healthcare’s legal landscape.

For those seeking an introduction to health law, the online Certificate in Health Law and Policy can be completed in eight months, functioning as a stackable credential that can be expanded to either the LLM or MA.

Schedule a call with an admissions outreach advisor today to discuss how Hofstra’s online Health Law and Policy programs can advance your career.