How to File a Malpractice Suit

Six Parts:Identifying Potential MalpracticeHiring An AttorneyAssessing Your Ability to Meet the Elements of MalpracticePreparing Your ComplaintFiling Your ComplaintGoing to Court

Malpractice cases arise when one party is injured through the negligence of another party. These cases can take many forms, but most often come up in legal and medical settings. This is the case because of the types of relationships that arise between a lawyer and their client, and a doctor and their patient. In order to prove professional malpractice, you will have to make a claim, similar to negligence, in court. Due to the complexity of these types of cases, hiring an attorney is almost mandatory. Once you hire an attorney and assess the viability of your case, you will need to file a lawsuit and go to court.

Part 1
Identifying Potential Malpractice

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    Know the different types of malpractice. Malpractice, which is a legal term for professional negligence, comes in may shapes and sizes.[1] Malpractice claims are most often filed as a result of the negligence of medical and legal professionals (i.e., doctors and lawyers).[2] With that said, malpractice claims exist in other professions as well. For instance, you may be able to file malpractice claims against architects, engineers, and financial professionals, to name a few.
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    Evaluate your personal scenario. Before you hire an attorney and file a malpractice suit against a professional, evaluate your potential claim and determine if you think it matches some of the common malpractice scenarios. If it does, you might have a malpractice claim to make. If it does not, consider if your harm rises to the level of malpractice, or if you might have a different legal claim to make. Be aware that this is not an exhaustive list and you should consult an attorney in order to decide the best way to proceed. Some of the most common malpractice scenarios include:
    • Legal malpractice. These claims come about when you, the client, are injured by some action taken by your attorney. A lot of legal malpractice claims arise when an attorney: fails to know or correctly apply the law; makes a planning error; does not adequately investigate a claim; fails to file documents in a timely manner; procrastinates; and fails to obtain client consent when it is necessary.[3]
    • Medical malpractice. These claims come about when you, the patient, are injured by some action taken by your doctor. A lot of medical malpractice claims arise when a doctor: misdiagnoses or delays a diagnosis; injures a child during the birthing process; errors in the prescription of medication; errors in the providing of anesthesia; and errors in the surgery process.[4]
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    Understand the elements of a malpractice claim. If you are going to be successful in recouping damages from a professional due to their negligence, you will need to be able to prove the elements of malpractice in court. Prior to filing a lawsuit, you should understand what it takes to make a malpractice claim. In very general terms, you will be required to meet four elements in order to make a claim for malpractice:
    • First, you will have to be able to prove that the professional in question owed you a legally cognizable duty of care.
    • Second, you will need to show that the professional's actions breached the duty of care owed to you.
    • Third, you need to be able to prove that the professional's breach caused the injury you complain of.
    • Fourth, you need to have legally recognized damages.

Part 2
Hiring An Attorney

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    Understand the importance of an attorney in a malpractice case. As you know, there are four elements to a malpractice case, each of which will need to be proven in court. These elements are incredibly difficult to prove and you will need the assistance of expert witnesses in order to do so.[5]
    • First, expert witnesses can be very expensive and without financial help from you lawyer, you may not be able to afford them.[6]
    • Second, eliciting the proper information from an expert witness on the stand can be complicated and should be undertaken by an attorney.[7]
    • Also, in a legal malpractice claim, in order to prove causation and damages, you are going to have to show that but for the attorney's negligence, you (the client) would have won your underlying case.[8]
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    Search for a good malpractice attorney. In a malpractice suit, you will be trying to recoup damages for the negligent or incompetent behavior of some professional (e.g., attorneys or doctors).[9] Malpractice attorneys deal with malpractice cases regularly, so if you are going to hire an attorney, you should hire a reputable one that has handled similar cases in the past. To choose a good malpractice attorney, consider the following:
    • Find an attorney that can practice law in your jurisdiction. For example, if you are looking at filing a malpractice suit in South Dakota, find an attorney that can practice law in South Dakota.
    • Ask your friends and family for attorney recommendations. Ask them about any experiences they may have had, and ask for the absolute truth.
    • Search the internet for reputable malpractice lawyers. Consider using your state bar's website; public websites like; and online directories like,, and
    • Check online reviews, which are often written by past clients who have either had positive or negative experiences. These online reviews can be very helpful and honest, so do some internet searches to try and learn about lawyers you are considering.
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    Make a decision. Once you have researched family malpractice attorneys and have some ideas, narrow down your list and contact your top choices. Ask your top choices for a consultation so you have an opportunity to explain the situation you are in and the services you need. A consultation will also give you an opportunity to determine how you think you would work with the attorney.
    • After you have met with attorneys and researched their background and expertise, you should make a final decision on who you will hire. Choose an attorney that makes you feel comfortable, that seems to know how to handle your case, and who feels confident that they can represent you in an effective manner.
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    Avoid bad attorneys. While there are many attorneys in the world, not all of them are particularly good. Avoid hiring an attorney who:
    • Solicits you as opposed to the other way around;
    • Pressures you into making a hiring decision quickly;
    • Refuses to tell you about their background and credentials; and
    • Suggests that they handle the case in an unethical manner.

Part 3
Assessing Your Ability to Meet the Elements of Malpractice

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    Assess the professional's duty to you. A duty is generally recognized when there is either a doctor/patient or lawyer/client relationship. In most states, if a doctor/patient or lawyer/client relationship exists, The doctor/lawyer owes the patient/client the duty of care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician/lawyer under the same or similar circumstances.[10][11]
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    Question whether the professional breached their duty. A professional breaches their duty of care when they deviate from, or fall below, the standard of care set forth in your state.[12] In the case of lawyers and doctors, a breach can be found when a duty is recognized and the professional acts unreasonably under the circumstances.
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    Ask whether the professional's deviation caused your injury. In addition to proving duty and breach, you must also be able to show that the breach caused, or contributed to, the injuries you have.
    • For example, in a medical scenario, let's assume you go to the doctor with a broken leg.[13] The first doctor you see misdiagnoses you but a second doctor correctly diagnoses your problem five minutes later.[14] In this scenario, it is unlikely you would be able to prove that the first doctor's misdiagnosis caused any harm, because the second doctor provided treatment five minutes later.[15]
    • In another example, this time involving an attorney, assume your lawyer failed to communicate with you regularly, but that any information you were going to be able to give them would not have changed the outcome of the trial.[16] Here, again, it is unlikely you will be able to prevail in a malpractice suit because the lawyer's shortcomings would not have changed the outcome of the case (i.e., the lawyer's actions did not cause you any injury).
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    Calculate your damages. To successfully prove damages, you will have to show that you were injured in a way that is compensable.
    • In a medical case, this could mean showing the judge or jury that the doctor's negligence caused you injury. You could then show this injury in the form of medical bills, loss of enjoyment, and losses to future earnings.[17] In a medical malpractice case, you may even be able to get punitive damages, which is a payment of money meant to punish the other party.
    • In a legal malpractice case, the damages recoverable are usually limited to the amount you would have recovered in the underlying case.[18]

Part 4
Preparing Your Complaint

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    Know the statute of limitations. Every state has a time limit regarding when you need to file a professional malpractice lawsuit. The time limit for medical cases and legal cases may be different. Be sure you check your state's statute soon after the injury occurs.
    • For example, in California, the statute of limitations for a medical malpractice lawsuit is three years from when the injury occurs.[19]
    • In legal malpractice cases, many states have a three year statute of limitations, although some states have lowered it to two years.[20]
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    Get a professional assessment. In a number of states, including New York, you will need to file a certificate of merit before you can bring a legal claim for medical malpractice.[21] A certificate of merit is a document confirming that you spoke with a medical professional (usually another physician) who looked over your medical records and certified that the doctor in question deviated from the normal standard of care.[22]
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    Gather documentation. Once you and your attorney believe your case has merit, you will need to gather documentation to back up your claims. Your attorney will also use this information when they draft your complaint. In order to document your claims, you should look for and gather the following information:
    • In a medical malpractice case, pull together medical records, records proving a doctor/patient relationship, lost time at work, second medical opinions, receipts pertaining to your injury, and written statements from family and friends regarding how the injury has changed your life.
    • In a legal malpractice case, request your original case file from the attorney you are thinking about suing. The attorney has an obligation to turn this over to you. An example of evidence that will get a court's attention is an order dismissing a claim or a motion because it was filed after a deadline had passed. Another is a bill from a debt collection agency because the debt wasn't included on a bankruptcy filing.
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    Find expert witnesses. One of the most important pieces of a professional malpractice case is the expert witnesses you hire to explain your position. You will need expert witnesses throughout the trial process, if you choose to go to trial, in order to prove every element of your case.
    • For example, in a medical malpractice case, you will need an expert witness who is qualified to opine on the severity of your injuries and how those injuries were likely caused. Furthermore, you will need an expert witness to explain if and how the physician breached their duty of care to you, the patient.
    • In a legal malpractice case, you will need expert witnesses to discuss the severity of your attorneys mistakes. They will need to show that it is likely the outcome of your underlying case would have been different if the attorney had not made the mistake they did. Similar to a medical claim, an expert witness will also have to explain if and how the lawyer breached their duty of care to you, the client.
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    Draft your complaint. Once you have all of the information your lawyer needs to draft your complaint, your lawyer will write a formal complaint that will be filed with the court. A complaint is a legal document setting forth the legal claims you are making, in this case a professional malpractice claim. The complaint will go on to explain why your complaint is valid and what damages you should be awarded. Talk with your lawyer about this process if you have any questions.
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    Consider alternatives to filing a lawsuit. Because professional malpractice cases are costly and timely, you might want to consider alternative options to filing your malpractice lawsuit.[23] Before filing your complaint, have your attorney contact the adverse party and attempt to settle the claim. If an agreeable settlement can be reached, you are likely to save a substantial amount of time and money that would have otherwise been spent on lawyers and witnesses. If a settlement cannot be reached, you will have your complaint drafted and you will be ready to move forward with the lawsuit.

Part 5
Filing Your Complaint

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    File your complaint. If you have reached the point of filing your lawsuit, your lawyer will file the complaint in a court having jurisdiction over the parties and over the subject matter. This will usually be a state court in the county where the professional works or where the injury took place. When you file a complaint, your lawyer (or you) will take the complaint to the courthouse and file it with the clerk of courts.
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    Pay the filing fee. When a complaint is filed, you will be required to pay a certain filing fee. Every state's fees will differ, so be sure to learn about what your filing fee is going to be. Your attorney will most likely be familiar with the fees associated with your particular case as well. If you cannot afford the fee, you may be able to get a fee waiver if you apply for one. Ask your lawyer about fee waivers and if they can help you obtain one.
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    Serve the other party. Once the malpractice lawsuit has been filed, you will need to hire someone to serve the other party with the complaint. To do this, you can either deliver an official copy of your complaint and other documents to the sheriff for service, or you can hire a private process server. The sheriff is usually less expensive than a private process server, and the results are almost always the same.
    • When you have someone served, they receive notice of your lawsuit and are given an opportunity to respond.
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    Wait for a response. At this point, you will wait for the other party to respond to your complaint. They will likely hire an attorney to write the response, and it will be filed with the same court you filed your original complaint in. Once a response is filed, you (or your attorney) will be served with the response.
    • You now have started a legal action and will move into the pre-trial and trial phase of the lawsuit.

Part 6
Going to Court

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    Review the other party's response. Once you are served with the other party's response, you and your attorney will analyze it in depth. You and your attorney will look at their responses in order to get an idea of what they are claiming and why they think they should not be held liable.
    • A general response will answer your complaint paragraph by paragraph, either agreeing or disagreeing with your claims.
    • A response might also include counterclaims, which are claims made by the other party against you. In a legal malpractice suit, the other party might claim you did not pay your legal fees or that you were not forthcoming and honest with them during the underlying case.
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    Prepare for trial. In order to prepare for trial, you are going to compile admissible evidence proving every element of your malpractice claim. In general, you will do this through independent investigation and discovery. You will also try and gather evidence that refutes the claims made in the other party's response. Common types of evidence include:
    • Oral testimony of expert witnesses and others;
    • Documentary evidence of your claims, which might include old case files or medical bills; and
    • Physical evidence, which might be in the form of a medical device used by a doctor that caused your injury.
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    Attend your trial. On your trial date, attend your trial and wait for the court's decision. A trial of this complexity could take days or weeks to complete. Witnesses from each side will be examined and cross-examined, other evidence will be admitted into the record, and each lawyer will do their best to prove their case. Dress professionally and be courteous throughout the entire process.
    • If, at the end of your trial, you come out on the losing end, talk with your attorney about appealing the decision.

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Categories: Civil Litigation