Client's Guide to a Medical Malpractice Case

Posted about 4 years ago. Applies to New Jersey, 2 helpful votes



The Decision to Consult a Lawyer

Dr. Jones is a nice man, who you trusted. But, something went horribly wrong during your total knee replacement surgery. It is now 10 months post surgery, and you are still walking with a walker. This is not the result you were promised. You are starting to think Dr. Jones may have made a mistake. Once you suspect you were injured by the negligence of a physician, the clock begins to tick. You have two years from the date a reasonable, objective person knew or should have known he/she was injured by the negligence of a doctor. It is time to consult a lawyer


How to Find a Lawyer

Medical malpractice cases are the most difficult personal injury cases for a plaintiff to win. It is critical you retain an attorney with significant experience prosecuting medical malpractice cases to a conclusion. Your prospective attorney must be comfortable dealing with medical terminology, and is an experienced, highly skilled trial lawyer. Here are some questions you may ask: 1. How many medical malpractice cases have you handled? 2. How many medical malpractice cases have you tried to a jury verdict? 3. Who is responsible for costs? 4. How will you go about finding an expert to assist you with my case? 5. How many cases have you handled with my medical issue. For example, a case may involve a failure to read and appreciate the significance of fetal monitor tracings resulting in the birth of a child with cerebral palsy Check out your prospective lawyer's website and blog for additional information.


How does a Lawyer Determine a Doctor Committed Malpractice?

A medical malpractice lawyer must obtain an opinion from a physician who practices in the same specialty as the defendant physician. If the defendant physician is board certified, the medical expert witness must be board certified in the same practice area. Plaintiff's medical expert witness will review all of the medical records, and offer his opinion about whether or not the defendant was negligent in treating the plaintiff. A physician is negligent if she departs from the standard of care and causes you an injury. The standard of care is a general consensus of the medical community about how a certain procedure or treatment should be performed. It is not the personal opinion of a doctor. A lawyer does not have the expertise to decide whether a health care provider committed medical negligence. She must consult a medical expert.


What Happens Next?

If a medical expert witness offers his opinion that the defendant was negligent in her treatment of a plaintiff, there is a basis to commence a medical malpractice case. However, if the medical expert witness opines there was no negligence, your lawyer does not have a legitimate, responsible, reason to initiate a claim against the defendant doctor. I recommend you decline to commence a lawsuit without an opinion from a reputable medical expert that the defendant committed medical negligence. The next step is for your lawyer to file a Complaint in Superior Court to commence your case against the defendant doctor. Your Complaint will be served on the defendant doctor, who will refer it to his insurance carrier. The insurance carrier will appoint a lawyer to represent the defendant doctor, who will file an Answer to your Complaint with the clerk of the Superior Court. Discovery will follow, which will be discussed in our next Guide to Medical Malpractice. Good luck.

Additional Resources

Shapiro & Berezin, P.C.

The Personal Injury Blog

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