How Does a Medical Malpractice Lawsuit Work?

Medical providers and health care professionals are devoted to ensuring that patients receive appropriate medical care. Providers owe a duty of care to patients which forms the basic foundation of the patient-doctor relationship. As in many professional fields, there may be instances when the treatment or medical services provided fail to meet the medically accepted standard of care in the particular field of medicine. When this occurs, a medical negligence or medical malpractice claim may arise. Medical malpractice claims are among the most complex types of personal injury claims. This article will endeavor to provide a generalized overview describing how a medical malpractice claim and lawsuit works.

Negligence

Medical malpractice falls within the larger general category of negligence. According to Black’s Law Dictionary, Negligence is defined as “The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attended circumstances.”

To summarize, general negligence occurs when a person does something that a reasonable person would not do; and when a person does not do something that a reasonable person would have done. To apply this to the medical malpractice context, for example, a medical malpractice claim may arise when a physician does something that a reasonable physician similarly situated in the same medical field would not do; and when a physician does not do something that a reasonable physician similarly situated in the same medical field would have done. When there is a breach in the duty of care by the provider to the patient, and the patient suffers injuries, damages, and losses as a direct and proximate result of the provider’s breach of the duty of care, the injured individual may have a medical negligence claim.

Certificate of Review

In Colorado (and in many other states), one key difference between an ordinary negligence claim and a medical negligence claim is that a complaint filed alleging professional negligence by a licensed professional must be accompanied by a “Certificate of Review.” See C.R.S. § 13-20-602.

The Certificate of Review must be filed within 60 days of serving the complaint. The Certificate of Review certifies that the plaintiff’s attorneys consulted with an expert in the relevant field of medical specialty who determined that the medical malpractice lawsuit is not substantially without merit. With the Certificate of Review requirement incorporated into Colorado law, it ensures that frivolous lawsuits are not filed against medical professionals. In addition, in Colorado, a medical malpractice complaint must be filed within two (2) years from the date that the individual knew or should have known of the alleged negligence. There are limited exceptions this timeframe, which are described in C.R.S. 13-80-102.5. Failure to file within the relevant time frame will forever bar the individual’s ability to recover.

Litigation

After the filing of the lawsuit, litigation of the medical malpractice claim commences. The parties will begin the discovery and motions process. Critical to prevailing on a medical negligence claim requires proving that the provider breached the duty of care to the patient by falling below the applicable standard of care. Parties on both sides hire expert medical witnesses to advise regarding complex medical issues and to provide opinions on the merits of the medical malpractice claim. The parties engage in discovery by requesting evidence from the other side to discover the relevant facts and information, and conducting depositions of the parties, witnesses, and experts.

Most courts require the parties to engage in a mediation or alternative dispute resolution to discuss the possibility of settlement. Mediation typically occurs after the parties have completed discovery or are close to completing the discovery process. If parties are not able to reach a settlement during mediation, settlement discussions sometimes continue in the following hours, days, or weeks. Cases may even settle up to and including the day that trial commences. However, in the event that a case does not resolve, the parties will proceed to trial on the issues. Medical malpractice trials may last anywhere from 1-3 weeks, or longer in some instances. When cases go to trial, there is no guarantee as to what a jury may decide. In addition, the losing party is often required to pay their own costs and the costs of the prevailing side.