How do I start a medical negligence claim?

Medical negligence or medical malpractice has a devastating effect on the lives of those affected and once the initial shock is over, then it’s time to start considering a medical malpractice claim.


The first thing you should do is get an opinion from a different doctor from the one who’s responsible for the situation. Explain your symptoms, share your medical records, and tell the doctor why you believe your injury is the result of malpractice. Be sure the new doctor updates your medical records or writes a letter explaining why they believe you’ve suffered from negligence. This could be a key piece of evidence.


Then contact a firm of medical malpractice attorneys to discuss your potential claim and see how viable it would be.


Once your claim has been deemed as viable then you and your team of lawyers need to start gathering evidence.


There are four different elements which need to be proved for a medical malpractice case, including a medical duty of care, breach of the duty, injury caused by the breach, and damages.

What qualifies as medical malpractice?

Although medical malpractice can involve any kind of treatment- or diagnosis-related injury, these are some of the most common reasons that people claim:

  • Failure to diagnose
  • Misdiagnosis
  • Failure to recognize symptoms
  • Failure to order correct testing
  • Misreading or ignoring test results
  • Disregarding or not taking appropriate patient history
  • Unnecessary surgery or other invasive procedure
  • Surgical errors (including wrong site)
  • Incorrect medication or dosage
  • Premature discharge
  • Poor follow-up care

Who can be sued for medical malpractice in California?

California laws apply to all health care providers and facilities licensed by the state, including:

  • Doctors
  • Laboratories
  • Clinics
  • Podiatrists
  • Nurses
  • Physical therapists
  • Hospitals
  • Anesthesiologists
  • Psychologists
  • Chiropractors

How do you prove duty of care in a medical negligence claim

Engaging with a medical professional or hospital to undertake a procedure or provide care during a medical process such as pregnancy and birth constitutes a duty of care. So if you visit a Doctor and they propose a course of treatment which you accept then they have a duty of care towards you. This will be noted in your medical records and can be used as evidence.

What types of evidence is needed for a medical malpractice claim?

Medical records – The most important type of evidence is your medical records. These can be extensive and include medication administration records, prescription records, nurses’ notes, doctors’ notes, diagnostic information, lab reports, treatment plans, discharge papers, and more. 

Expert Witness Testimonies & Expert Articles. Articles from respected medical journals can help medical experts to assist you with your case. These types of articles help to show what the appropriate treatment in your situation should have been and how your treatment deviated from that standard. Medical literature is also helpful to medical malpractice lawyers when they cross-examine defense witnesses.

Medical malpractice is when a healthcare professional is aware of the possible consequences before making a decision that led to an injury. This is one of the hardest elements to prove in a case as a genuine mistake by a medical professional is classed as negligence not malpractice. 

Medical negligence is substandard care that’s been provided by a medical professional to a patient, which has directly caused injury or caused an existing condition to get worse. The evidence that is presented in medical malpractice cases is extremely complex, and people without a medical background may find it hard to understand. Even the patient themselves may have a hard time understanding the evidence despite it being related to their own condition.

This is why it is so important to use a team of medical malpractice attorneys who are highly specialized in this field. Multiple members of our team are also actually qualified medical doctors, making them your best ally in your negligence or malpractice case.

If your medical negligence claim is successful, you can be awarded damages for:

  • Medical treatment (including surgery, doctor visits, hospitalizations, medications, and other costs associated with your care)
  • Loss of income (both past and future)
  • Assistive devices
  • Pain and suffering
  • Emotional trauma

How long does the average medical negligence claim take?

In California, the law states that medical malpractice lawsuits must be filed within one year of the patient discovering the injury or within three years of the date that injury occurred—whichever comes first. However, there are some exceptions,

  • For example, if a medical instrument was left in a patient’s body during a surgical procedure, the patient can file a medical malpractice claim against the relevant medical professional even if the surgery was 10 years prior—as long as the patient files the lawsuit within one year of discovering the forgotten instrument.
  • California’s medical malpractice statute of limitations for children under the age of 18 is a bit different. In these cases, the parents or legal guardians of the minor must file the medical malpractice lawsuit within three years. However, if the victim is under the age of six, the lawsuit should be filed within three years or before the minor turns eight.
  • Additionally, children who were injured prior to or during their births have six years for their parents or legal guardians to file on their behalf.

If you would like to make a claim for medical negligence, contact the experienced team at Stalwart Law today. 

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