State Medical Malpractice Laws

Gabriel Levin | August 25, 2022 | Medical Malpractice
State Medical Malpractice Laws

state medical malpractice laws

Medical malpractice, also sometimes called medical negligence, occurs when a doctor, nurse, or other healthcare workers unreasonably fails to provide a minimum standard of care to a patient, resulting in harm. Victims of medical malpractice generally have the right to demand money damages from the providers who harmed them.

But those rights are not always uniform nationwide. Instead, many (but not all) aspects of them vary from state to state. For example, every state has its own set of laws governing when and how an injured patient can take legal action against a negligent medical provider.

An experienced medical malpractice attorney represents those victims in seeking justice and fair compensation for careless, reckless, or intentionally harmful medical care.

Table of Contents

State Laws on Liability for Medical Malpractice

The only aspect of malpractice law that is mostly uniform across the United States has to do with what constitutes medical negligence. All medical providers, no matter where they practice, have a duty to treat patients with a minimum degree of skill, knowledge, and attention to detail. This is known as the medical “standard of care,” and it serves as the benchmark for all medical malpractice cases.

Not all poor health outcomes result from malpractice. Sometimes, even the best medical care isn’t enough to prevent an injury or illness. Similarly, sometimes medical mistakes and carelessness make no difference in a patient’s condition. We only hold providers financially accountable for bad outcomes if their failure to deliver the medical standard of care contributed to causing it.

The medical standard of care is at once a firm and flexible measuring stick. Every provider must meet it, but what it takes to do so can vary depending on the provider’s qualifications, the patient’s health problem, and the setting in which treatment happens.

On the one hand, a person complaining of chest pains might rightfully expect a different standard of care from a cardiologist at a big city research hospital than from a rural family practice doctor or an EMT on an ambulance crew.

On the other hand, we might reasonably expect any provider evaluating that patient to check vital signs and perform an electrocardiogram (ECG or EKG), regardless of the provider’s level of training or the care setting.

The most reliable way to find out if a medical provider fell short of the standard of care in your case is to consult with an experienced medical malpractice attorney as soon as you learn of your poor health outcome. The sooner you speak with a skilled and knowledgeable lawyer, the better the lawyer’s chances of spotting telltale signs of medical malpractice entitling you to compensation.

State Laws on the Process of Suing for Medical Malpractice

Although the basic definition of medical malpractice is relatively uniform across the country, the process involved in seeking compensation for it is not. Due in large part to so-called “tort reform” efforts by medical lobbying groups, insurance companies, and legislators friendly to them, states have passed a wide array of laws designed to limit when and how victims of medical malpractice can pursue claims against providers who harmed them.

Proponents of these laws claim they’re necessary to prevent baseless medical malpractice lawsuits from clogging the courts, but many patient advocates believe that, in reality, they unfairly insulate medical providers from bearing the consequences of their mistakes.

According to the National Conference of State Legislatures (NCSL), state laws place three general types of procedural hurdles in the path of injured patients and their lawyers: merits certifications and expert witness qualifications, screening panels and alternative dispute resolution (ADR), and statutes of limitation.

Merits Certification and Expert Witness Qualifications

A little more than half of the states require lawyers for injured patients to present some type of certification about the merits of a case as a condition of filing a medical malpractice lawsuit. In some states, lawyers themselves must certify that they conducted a reasonable investigation and that they believe the case has merit. In others, attorneys for injured victims must obtain an affidavit from a qualified medical provider attesting that the claim has a valid medical basis.

In states that have these laws, failure to produce proper certification can doom a medical malpractice case from the get-go.

Over half of the states also have laws setting minimum qualifications for expert witnesses in medical malpractice cases. These laws purportedly aim to keep junk medical testimony out of courtrooms, but in practice, they can set unrealistic requirements for medical expert testimony and increase the cost of pursuing justice for a medical injury.

For example, the statutes often require specific expertise or board certification in a narrow field of medicine for an expert to testify, even when providers without those qualifications could competently and accurately testify about the key medical issue in a case.

Screening Panels and Alternative Dispute Resolution (ADR)

Just over half of all states require lawyers for injured patients to obtain permission to file a medical malpractice lawsuit from a screening panel made up of medical and/or legal experts. These statutes ostensibly aim to keep meritless medical negligence cases out of court by setting minimum standards for the strength of a claim, but in reality, they often make pursuing a medical malpractice case prohibitively difficult and expensive.

Screening panels that review cases sometimes consist only of doctors or lawyers who have a professional and personal bias against malpractice claims. Requiring patients to present cases to screening panels first before doing so again in court can also effectively double the cost of pursuing a case, which ends up limiting access to justice for patients with valid, but lower-value claims.

Many states have also adopted procedures aimed at channeling as many medical malpractice cases as possible into mediation or arbitration, which are two forms of alternative dispute resolution (ADR). Mediation is a process in which a neutral third party seeks to facilitate settlement negotiations between a patient and the provider accused of malpractice. Arbitration is a private court process in which a paid arbitrator hears the evidence and decides the case instead of a judge and jury.

ADR can be useful in resolving malpractice claims quickly and efficiently, but in some states, the procedures give advantages to medical providers and their insurers designed to produce lower-dollar outcomes for patients.

Statutes of Limitation

A statute of limitation is a law that sets a deadline for taking legal action, like giving someone notice or filing a lawsuit. Missing a statute of limitation deadline generally results in some loss of the right to sue for damages.

All states have statutes of limitation for personal injury cases. Depending on the state, those deadlines can range from one to six years after an injury, subject to conditions and exceptions that can shorten or lengthen the limitation period. In some states, the statute of limitation for a medical malpractice claim is the same as for any other type of personal injury lawsuit.

But in other states, individuals who want to pursue a medical malpractice claim must meet special deadlines applicable only to those types of cases. Depending on the state, a medical malpractice statute of limitation may set multiple deadlines; for example, one for notifying the provider of the potential claim, another for obtaining a certificate of merit, another for completing ADR, and another for filing a lawsuit.

Generally, states that have specific medical malpractice statutes of limitation set shorter and stricter time limits on medical malpractice claims than for personal injury claims generally.

State Laws on Damages for Medical Malpractice

Intense medical and insurance industry lobbying in state legislatures has also produced numerous laws aimed at limiting the damages available in medical malpractice cases. According to the NCSL, these laws fall into two general categories: damages limits and caps and joint and several liability statutes.

Damages Limits and Caps

More than half of the states set limits or caps on the amount of damages an injured patient can receive. The content of these laws varies widely. Some specify a strict maximum amount a judge or jury can award to a victim of medical negligence. Others restrict the amount of pain and suffering (or non-economic) damages available by limiting them to a multiple of a patient’s financial (economic) damages. And still others partially or totally bar injured patients from claiming punitive or exemplary damages.

Medical malpractice lawyers view many of these caps and limits as arbitrary and unfair to patients who have gravely suffered because of a medical provider’s errors or misdeeds.

Joint and Several Liability Statutes

In some medical malpractice cases, a patient’s poor health outcome clearly results from the wrongful actions of one and only one individual. But just as often, multiple individuals or entities bear some of the blame for the harm caused by medical negligence. And in those cases, it becomes necessary to determine how much each of them should pay to the innocent victim.

State laws vary widely when it comes to this allocation of liability. Some states hold everyone equally liable for the entire amount of damages, regardless of their degree of fault. Lawyers call this joint and several liability. Other states only hold at-fault parties liable according to their degree of fault. Lawyers refer to this as several liability. Still other states adopt hybrid or modified joint and several liability rules that allocate fault and damages in a more nuanced manner.

These liability laws can have a significant impact on the damages a victim of medical malpractice can recover. They have the best odds of a full recovery in states that follow joint and several liability rules. But it can get more complicated for them in states with pure several liability or modified systems, where providers can argue over the degree that their specific actions contributed to a potentially complex health outcome.

Hiring the Right Medical Malpractice Lawyer Makes All the Difference

A broad array of state laws place formidable barriers in the path of victims of medical negligence seeking justice and compensation for their injuries. No matter what state you live in, pursuing a medical malpractice claim is not the same as suing for damages you suffered in a car accident or a slip and fall.

It’s a particular type of legal action for which you need a well-qualified, seasoned attorney who knows how to clear the legal and procedural hurdles that stand between you and the money you need to pay your bills and rebuild your life.

The right medical malpractice lawyer for your case is the one who can:

  • Evaluate your poor health outcome and determine if its root cause involves a breach of the medical standard of care;
  • Explain the options available to you under your state’s medical malpractice laws, and answer your questions in a way you can understand;
  • Take immediate action on your behalf to preserve your rights under your state’s statute of limitations rules for medical malpractice cases;
  • Find, consult with, and obtain any necessary certifications from qualified medical experts who can opine on the merits of your case;
  • Present your claim to a screening panel if required under your state’s laws;
  • Navigate whatever ADR processes are required to achieve the most favorable outcome for you possible;
  • Advocate for you in court and win at trial by arguing your case clearly and effectively to a judge and jury.

To find that lawyer, look for one who advertises medical malpractice as a specific practice area, who boasts an established track record of success in medical malpractice cases, and who has earned the trust of clients over years of determined, diligent advocacy.

Contact an Experienced Medical Malpractice Lawyer Today

gabriel levin Attorney
Gabriel Levin | Medical Malpractice Attorney

If you believe that a poor health outcome you or someone you love suffered may have resulted from a medical provider’s mistakes or misdeeds, do not wait to protect your legal and financial rights. You may have only limited time to take action and begin the process of seeking damages for the harm done to you.

To get started, contact an experienced medical malpractice lawyer today for a free, confidential, no-obligation case consultation.

Gabriel Levin - Attorney

Attorney Gabriel Levin is known as a tenacious fighter who protects his client’s interests as though they were his own; he has tried hundreds of cases and handled a large variety of civil matters, from minor injuries to the catastrophic. Mr. Levin prides himself on preparing every case for trial. While some attorneys view trial as a last resort, he prepares with the assumption that his client’s case will be decided by the jury. Clients know that Gabriel Levin is a very responsive attorney, keeps client fully informed, and always gets back to them in a timely manne

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