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Posted in Videos on May 24, 2018   |  by Gary Burger

What Do I need to Do to File a Malpractice Case

Hi! I’m Gary Burger from Burger Law. What do I need to do to file a medical malpractice case? Well, in both Illinois and Missouri and many other states, tort reform has already happened years ago, and as lawyers before we can file a medical malpractice case against a doctor or hospital is we need a letter, a letter from another doctor saying that that doctor or the nurse or whoever you’re charging with negligence committed negligence, breached the standard of care that they should have afforded the patient and that that breach caused damages to the patient and either the plaintiff or the plaintiff’s family.

And so, what we do when we review a case — and we visit with a lot of clients about this — is we visit them about what happened, we get the medical records and bills, and then we consult with different types of experts depending on the area of medicine in which the negligence occurred, and we visit with them and say, “Hey, here’s the records, here’s the facts, what do you think?” And the doctors come back to us and say, “You know what, the doctor in this case, I know it’s a bad result, I know this happened, but I don’t think they violated the standard of care.” Or, sometimes the doctor comes back and says, “Listen, there’s clearly an established medical standards of care — rules of the road, so to speak, for doctors — from 20 years ago that said this is how you’re supposed to do it: you got to look before you cut; you have to eliminate this condition before you continue on with this; you have to do this kind of test; you can’t discharge someone from a hospital until you rule out this type of infection or do this assessment for a heart attack; you have to look before you cut.

There’s a variety of circumstances under which doctors with clearly established medical standards breached the standard of care, and then the question is whether or not that caused damage in someone. If you break your arm and you go to the ER and they missed that diagnosis but you go to the ER the next day and they diagnose you and they put you in a cast, there’s no causation. Although the first hospital missed the diagnosis and that might have been negligent, you addressed it in time; you got a cast on the next day; and that missing it in the first ER visit didn’t cause you any damages.

So, an important step in medical malpractice claims is that there’s that causation element, that the deviation from the standard of care, the negligence of the doctor caused that damage in someone, and when that occurs and if the circumstances are right and it sounds like a good fit between our clients and us, that’s when we go ahead and file a lawsuit. You file a lawsuit in the place where the malpractice occurred. You typically name the doctor, the hospital or whoever as defendants, and in some states, you have to file a certificate with the petition that you have that certificate of merit or that letter signed by a doctor that there was negligence and that negligence caused injury or death in the person. In some states, you have to file it within a certain amount of time or you file an affidavit with the court that you have such a letter in your possession. We do that and then we’re able to proceed with the case, conduct the type of discovery and depositions and what we need to prove the case.

So I thought I just do a little bit of video here to educate folks a little bit about the steps that we take before we file a malpractice case. There’s other stuff we do. We consult with other experts. We conduct medical timelines. We research and analyze the medical procedures involved. But certainly before we can file a lawsuit, we assess that we have doctors onboard to testify about that the standard of care was breached as well as the causation with the injury that occurred.

If you have any other questions about medical malpractice or other types of injuries, visit us at Email me at Call us at 866-599-2222. Thank you.